It is correct that the custodian of a Will has the legal obligation to file the original Will with the Probate Court in the county of residence of the decedent within 10 days of the date of death. In my experience a letter to the custodian from an attorney for an interested family member usually stimulates compliance with the law. Before going to the expense of a suit against your mother, you may attempt to get a copy of the Will by other means, such as from your father's attorney who would have prepared the Will. If you learn that the Will leaves everything to your mother, then you would have avoided the expense of legal action. However, you may wish to consult with a probate attorney, as under certain circumstances you may be entitled to inherit a portion of the probate estate as an intestate heir, where no Will is found.
Legal disclaimer: Louis D. Putney is a Florida attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.
I agree with my colleague Ms. Lindquist that the Will needs to be filed. Under F.S. 732.901 the custodian of the Will must deposit it with the clerk where the decedent died within 10 days after receiving information that the decedent has passed away. Upon petition and notice the custodian may be compelled to produce and deposit the Will with the clerk. If you are are successfull in such a petition you are entitled to costs, attorney's fees and any other damages you've suffered as a result of the dealy in filing the Will. I strongly recommend you obtain a consultation with a board-certified Wills & Estates lawyer in your county.
I am not seeking to represent you based on the response to this question. The answer given is for general information purposes only. No attorney-client relationship is hereby intended.
If your mother is not mentally stable perhaps you should consider a guardianship for her. A board certified probate atty could counsel you on this matter.
Legal disclaimer: This answer does not constitute legal advice. I am admitted to practice law in the State of Missouri only, and make no attempt to opine on matters of law that are not relevant to Missouri. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship. less
Hire an attorney to write demand letter to file the will.
If she fails to file-the court can make her file and take appropiate action.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Florida Statutes at Sec. 732.901 requires the production of wills - that is, posting the will with the clerk of court - within 10 days. An interested party may sue to require posting the will, and for any damages incurred because of delay. Usually a simple demand letter from counsel will obtain compliance. Suppressing or destroying a will is a felony; mentioning this in a demand letter is advisable. Such a letter can be kind and conciliatory, but will not be welcomed by Mom.
It may be that you are not named beneficiaries. If not, there is nothing in this for you. Law does protect spouses rights, but not children in respect to inheritances. If you are beneficiaries AND Mom is named as the Personal Representative (PR), please keep in mind that it is difficult (but not impossible) to convince a court to refuse the appointment a person designated in the will as PR. It is actually less difficult to remove a PR later. This depends on what you can prove. Usually if harm to the estate is very likely, the courts will give serious consideration to a Petition to reject the named PR.
If Mom is the only beneficiary, you may ultimately need to consider a guardianship for her. If it is in her best interests to be in a guardianship, a determination of competency is made. If she is found to not be competent, even to a small degree, she statutorily cannot be the PR of Dad's estate. This is dependent upon the what the review committee for her competency, which is appointed by the court, determines. If she is barred from acting as PR, the court will choose the person who will serve.
A third possibility is to file a petition for Administration of an Intestate Estate, contending that Mom has failed or refused to post the will after demand, and having never seen the will, you do not believe it exists. She is served with this Petition, and is likely to react by posting the Will, and possibly hiring counsel and filing a Counter-Petition for Administration of the Testate Estate. You are nevertheless entitled to fees and costs.
While your goal is to have the will posted, you MUST consider the alternatives and possible outcomes of your choices. Clearly, no matter what, Mom will be unhappy, and probably angry. The demand letter can be kind and gentle, but experience says she will nevertheless be unreasonable and very hostile. Each of the above alternatives have merit, especially needed in all events is a demand letter. Whichever action you choose, this is likely to go on for awhile, and can be costly. Consider whether Dad's assets and probable disposition warrants the level of emotional turmoil required. Balance that against Mom's possible/probable need for a guardianship. Ultimately, a guardianship may be the kindest way to protect her and yourselves.
Perhaps your best choice is to do nothing. A nice card from all of you apologizing for any stress may help "mend fences," although you have done nothing wrong. Emotional withdrawal after loss of a spouse is common; everybody deals with grief in different ways. Any action may be brought later. You are all grieving, and therefore reactive. I urge that you consider that you now must parent your own parent; be kind, hold back your upset with her acts and deeds. If she is endangering her well-being, then act in a unified manner.
I am sorry to hear of your loss. My colleagues are more than correct in their answers but my concern if the welfare of your mother. If your mother is mentally unstable, I suggest you contact a guardianship attorney and take control. She may be so overwhelmed and being mean sometimes represents alzhimer onset. She may be trying to hide that there is something wrong with her and therefore becomes very defensive.