If a person, in this case the appointed Exector of a Will, is suspected of hiding a memorandum from family, can they be taken to court to bring it forth? Also, shouldn't the deceased's lawyer have a copy of the memorandum and full valid Will?
This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship.
I think the answer to your question is going to depend on what you mean by a "memorandum." As part of my practice, I prepare a cover letter and several memoranda for clients to use when they review the draft legal documents. However, those documents have absolutely no legal effect, and, while they could be shared with the client's family after the client's death, there is no right or entitlement in the family to see them.
There is also another kind of memorandum, which I think may be what you are referring to: this would be a memorandum setting out specific tangible personal property items to be distributed to specific beneficiaries. This type of memorandum is permitted under Georgia law and can be prepared in conjunction with a Will which refers to that type of list and directs the Executor to follow it in distributing the property. This type of memorandum is not itself legally binding, but if there is one it should be disclosed along with the Will unless the Executor has a reason to think that it was effectively revoked by the deceased person. If you think that the Executor is hiding something like that, then yes, it may be possible to have a court order the Executor to produce it. You would need to contact an attorney experienced in probate work in the state where the estate is located.
As to your question about whether the decedent's attorney should have a copy of the Will and the memorandum - that depends. Some attorneys do not seem to keep copies or originals of signed Wills they have prepared. In my practice, I do keep such copies. However, if a client prepares a memorandum setting out distributions of tangible personal property, the client may not think to provide me with a copy of the new memorandum, so I cannot say that I would always have a copy of that. One benefit of using a memorandum of this type, from the client's perspective, is that the memorandum does not need to be executed with the same formalities as a Will, and the client can change it at will, without legal help to do so. I ask my clients to send me copies of any such memoranda that they may make, but I am sure that they don't always think to do so.
Also - just because the Will references a memorandum of personal property does not actually mean that there is one. This type of provision is very commonly used in Wills, usually with the inclusion of a back up distribution provision for the tangible personal property in case there is no memo prepared or found after the client's death. Many clients never do the memos, as they are happy with the default distribution provision or just can't be bothered to take the time to make out a list. So, just because the Will says there may be a memo does not mean there is one. And, finally, if the memorandum you are seeking is believed to make bequests of cash, real estate, or other assets which are not tangible personal property items, then it is probably not valid anyhow, unless it was done as part of a properly structured revocable trust and not simply in conjunction with a Will. If a person's Will says one thing but the person then makes up a memo describing other distributions they want to have made, and the memo does not qualify as a codicil to the Will or a whole new Will, then the memo does not have any legally binding effect, and the Will will control.
You should consult an attorney directly if you need to know more about the situation. Good luck to you.
Just to add to Ms. DiSalov's excellent answer,if the primary estate planning document is a revocable living trust as opposed to a Will, then such a memorandum may have legal effect and it could dispose of cash and other assets as well as tangible personal property items. Trusts do not need to be signed with the same legal formalities as a Will in most states.
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