What should I do if the person who has the will denies the existence of it?

Asked almost 2 years ago - Lyons, NJ

My father just passed away and my Aunt is denying the existence of his will. Her husband states there is a will. She has joint access to my father's bank account, which we have now found out defaults to her. My father on numerous occasions said he wanted his money to be put into trust funds for his 4 grandchildren. My Aunt took the information from us needed to do this, but advised us at his funeral she never did it. We do not know the lawyer he had the will created with, as my father lived in PA but previously lived in NJ. Where do I go from here? Is there a way I can track down the lawyer and obtain the will myself as his next of kin? I fear her plans is to take the money and run, which is why she is hiding it, as her son was dumb enough to post it on my sister's face book.

Attorney answers (4)

  1. 3

    Lawyers agree

    Answered . I am sorry for your loss and your aunt's conduct. Compelling production of a will is difficult and even if a court ordered it to be produced she could always state she does not have it. If you have not seen the will and therefore have no actual knowledge of it you should discuss with a probate attorney raising an estate for your father as an intestate estate. Once an administrator is appointed that person can obtain from institutions where he had accounts records indicating what he had on deposit when he died, what was on deposit in prior years, financial transactions, when accounts were made joint, etc....If the accounts were between him and your aunt and were joint they may pass to her by operation of law. A key would be when they were made joint and whether he was lucid or she forged his name as even if joint it may be possible to challenge the matter. Time is of the essence in this matter as there are short statute of limitations. So, consult a probate attorney licensed to practice in NJ as soon as possible.

  2. 2

    Lawyers agree

    Answered . You raise some thorny legal issues that cry out for a consultation. I'm maybe 15 minutes from Lyons off I-78 exit 33.
    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law... more
  3. 1

    Lawyer agrees

    Answered . Unlike many States, New Jersey does not have a provision in the probate code specifically requiring someone holding a Will to produce it. That said, there are criminal statues that prohibit hiding a Will in most instances.

    I'm not clear whether your father was a resident of New Jersey or Pennsylvania at the time of his death. While I practice in both states, I have never litigated the question of the obligation to produce a Will in Pennsylvania. Without doing any research, I can say that I'm confident that PA either follows the uniform law (requiring the production of a Will) or has some law requiring its production. If nothing else, there's common law.

    The question is, what is to be done if the holder denies its existence? One option is litigation to try to compel its production. Another would be to accept her statement and treat your father's Estate as an intestacy. Your aunt would not take under an intestacy or, if the Will exists and is as you believe, under the Will.

    Your fears that your aunt will take the money out of your father's estate are, regrettably, quite reasonable. I don't like to urge people to go to lawyers here on Avvo, but in your case, I really do urge you to get a probate litigator right away. Time is precious in cases like this.

    Best of luck.

    This answer is based on general legal principles only and is not intended to provide specific legal advice. This... more
  4. 2

    Lawyers agree

    Answered . You have a very difficult, but not uncommon situation, which is most prevalent in cases where there was do-it-yourself estate planning. That does not jive with the presence of a Will, but if the assets were all joint with his sister, then the Will is not likely to make any difference, anyway. Assets that are jointly held or designate a beneficiary automatically pass to the surviving joint tenant or beneficiary upon death. They are not controlled by or affected by a Will. So finding the Will is not your biggest problem, from the appearance of this. In the absence of a Will, there is no way for your aunt to inherit, if the assets are titled in your father's name alone. So she has no incentive to hide a Will. It would generally only help her to produce it. You should meet with a probate lawyer to look into this further, but you may be on the outside looking in.

    I am very sorry for your loss and the situation you find yourself in.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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