What can I legally do if stepmom destroyed my dad’s will?

Question

Stepmother has for sure destroyed the will. I have a paper my dad wrote me about insurance policies and what company they were through. My dad wrote my sister the same thing with instructions on what to do with them. One of them being to pay the house that I live in with my 3 children. His wife knows of this and said she is selling the house I live in which is in my dad’s name and still owe about $40000 dollars on. She is telling me I need to start looking for somewhere else to live. My dad’s will is missing. I know he had one. He talked to me about it all the time. The step mom already changed the locks on their house, pack my dad’s stuff up and ready to get rid of his things. My dad’s funeral was just this past Monday on March the 20th. At first she said everything was missing to telling my sister she has all the life insurance policies. There are a bunch of lies going around with her. When she said there was nothing for a burial, I told her there was and wrote down on a piece of paper off the paper my dad gave me to tell her where and what his burial insurance was. She lost it, said she is the wife and everything will go through her. She was mad I knew of this, so mad she almost left their house while my dad was dying on hospice. She got rid of the will. I know she has. She has made comments about betraying and my dad doing things behind her back since I knew of things. I just want to know what I can do. I will check probate court to see if he filed a will there but if he didn't what can I expect and is there anything I can do.

Ronald Nims · Answer

The first question is: it is possible to find the lost will, do you know which attorney that your father used. Attorneys always keep copies of wills they write for their clients. In the event you can't find the will or find the attorney that drafted the will, you will find it impossible to prove which it said.  However, Ohio law provides at without a will - when the widow isn't the mother of his children - the property of the deceased is split between his widow and his children.  You would need to go to the probate court and open his estate.

James Frederick · Answer

I am very sorry for your father's death and the situation you now find yourself in.  There are lots of facts that you do not know and that is clouding the things that you think you DO know.  Life insurance almost never passes by Will. Life insurance passes to the designated beneficiary. So even if the Will mentioned the insurance, it does not matter, as long as the beneficiary is designated. You would file the death certificate and a claim form with the insurance company and they will send a check. As for the remaining assets, it depends on the title. If the house is titled in your father's name alone, probate will be necessary. In that case, copies of the Will may work as well as the original, but the wife can elect to take against the Will and she would be entitled to a substantial portion of the estate. In the absence of a Will, the estate would pass by way of the intestacy laws. The wife would be entitled to roughly $200k, plus half of all remaining assets.  It sounds like there may be a fight in probate, so you probably are going to need to retain an attorney to make sure your rights are protected.

John Brennan · Answer

You can expect to hire an attorney and be in a fight. She is incorrect regarding some of the law if this is a Michigan matter.

Edwin K. Niles · Answer

See a probate lawyer ASAP.

Norman Green · Answer

You may be able to get a copy of the will from the lawyer who drafted it.

Brian Haggerty · Answer

If your Dad died with no will (if you can't prove that it was your stepmother who destroyed it) then his estate is split between stepmother and you and your sister. So, destroying the will puts her a little ahead of where she would have been had your Dad's will left none to her  she would still have been able to claim a "spousal share" depending on how long they were married. The insurance policies will pay out to named beneficiaries, and are not affected by the will. You should get a lawyer and be prepared to administer the estate if stepmother does not move to do so.

Victor Waid · Answer

Suggest you obtain the services of a probate litigation lawyer immediately to probate your dad's estate and have yourself appointed the administrator.

Randall Romei · Answer

If your father has no Will then his estate will pass by the rules on descent and distribution.  This means that of his estate is transferred to his living spouse and is divided amongst his children, born to or adopted by him.  If the house was in your father's name alone, then you will have an ownership interest.  If your father had a Will that cannot be located you would have to find a copy and then attempt to prove it was lost.  It is possible to prove a Will was lost but it is difficult.  Perhaps you can locate the attorney that helped your father create the Will and get a copy from the attorney.  It is a place to start.  As an interested person you can open a probate estate for your father.  The spouse is likely to be made the representative but that can be challenged and even if appointed she could be subjected to a court supervision.  If the probate is made a supervised estate then the acts of the representative must be presented to the judge for approval.  Contact the life insurance companies and make sure claims are filed so the death benefits are paid to the proper person in accord with the beneficial designations.

Jayne Sebby · Answer

You can file a petition with the probate court in the county in which your father was living at the time of his death asking for you or your sister to be named the executor/personal representative of the estate.  You can also ask the court to prevent any of your father's possessions from being sold, given away, or destroyed by anyone except the executor.  And you can inform the court that you believe that your father had a will in his possession prior to his death.  It would be a good idea to hire an attorney to help you with this matter.

Jeffrey Gottlieb · Answer

"Knowing it" is one thing, but being able to prove or show it might be another. Unless you can show some concrete evidence of a Will, you might not be able to show anything? If he had a Will done through an attorney, if you can find that attorney he/she might have a copy and/or might know where the original was kept.

Dara J. Goldsmith · Answer

You should sit down with an attorney and discuss your options and costs associated with the same.

Sabina Tomshinsky · Answer

If no will is found, your father's estate would pass pursuant to Florida's intestacy laws. You really should consult with a probate attorney right away to ensure that your interests, as a child of the decedent, are protected.

Thomas Edward Gates · Answer

You need to retain a probate attorney.  He can do a lost will search if one has not been provided to the court to initiate probate.

Steven Fluhr · Answer

If your Dad gave you instructions, you should follow them. The will should have no effect on insurance policies as those proceeds normally go to the named beneficiaries. Having physical custody of the policy makes no difference.

Christine James · Answer

Unless you can find the attorney who drafted it, you have a very difficult battle.  If their marriage was short, she may only be entitled to a small amount of the estate even without a will, SO, SEE AN ATTORNEY ASAP.

Charles Perry · Answer

Without seeing the paper that your father wrote, it is not possible to   advise you.  If your father listed insurance companies, you can contact those   companies to see if the policies are still in place and whether you   are a listed beneficiary.  You do not need to go through your   stepmother for that.  If you know who drafted your father's will, you   can contact that lawyer and see if he or she kept a copy.  And, you need to call a lawyer for assistance.  There's a fight   brewing as to what happens to the house and the rest of the estate,   and a layperson is not in a position to fight that any more than he is   able to put out a three-alarm fire or perform an emergency   appendectomy.  It also sounds like a probate may be in order to settle   the dispute between you and your step-mother, if you cannot reach an   amicable resolution.

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What can I legally do if stepmom destroyed my dad’s will?

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