When you probate a will, do you have to notify the heirs?

Question

Last Jan 07 my wife's father-in-law died. We have been waiting for the will to be probated. We just found out today that the step mother-in-law had already probated the will back in June without letting the children know. The county clerk told us that there was a lot of other paper work filed. A motion to dismiss, a motion to reinstate, and something about a lost will. We also found out that she was the executor of the will. Can you be an executor of a will that you will benefit from? And can you probate a will without notifying the heirs?

When she pop her clogs as you put, wouldn't she just put her own family in her will still leaving us out?

Sorry, I meant he is my father-in-law and her father. The house is not the problem. It is his business that had been the family business for 3 gen. She has taken it and sold the whole thing. His boys and his daughter got nothing. They didn't want any money. Just his old hand tools and mementos of the business. All of that is gone now.

She did put a public notice in a newspaper. Only she put it in the paper in the town she lives in and we are on the other side of the state of Tx

When we got over to town the day after his death, the step-mother told us that he had just re-written a new will. But that he never got it filed so that they would have to use his old will that was filed in 2001. She said not to worry about it cause we would be happy with what we got. The step-mother grandson told me that he was the executor of the will and he had a copy and his lawyer had a copy on file. The next day the boys got into a fight over his personal handtools and she kicked them out saying that she would be changing the will. Now 8 months later we find that the will has been probated, she was the executor and there was some kind of filing for a lost will. What lost will if there were two copies? Since the children were never notified this must mean that their names was not mentioned in the will. Even tho when we talked with the file clerk after the funeral she said that there were papers with the boys names mentioned on file.
This man loved all his children.

Answer 1

First, I'm confused about your wife's relationship to the man who passed away. If he was her "father-in-law", wouldn't that make him your father (your parents would be her mother and father-in-law; her parents would be your mother and father-in-law)? Was this man the father of your wife's ex-husband, perhaps?

I'm bringing this up because it seems to me that your wife's relationship to this man was somewhat distant. Do you or your wife have reason to believe that there was a will? Do you or your wife have reason to believe that this man left something to your wife? What is your reason for thinking your wife should have inherited something?

You also say that the "other children" weren't notified either. How is it that this man's children either "didn't know" he passed away or "didn't know" about the probate?

As for your other questions, there's nothing illegal or improper about the executor of a will also being a beneficiary of the will. Many people name beneficiaries (i.e., spouses, childen, siblings or close personal friends) as their executor.

The executor has a duty to notify known beneficiaries and "interested persons" (unknown potential beneficiaries, creditors, etc.) of the existence of the probate. If the will was lost, however, the person who served as executor (the woman you identified as your wife's "step mother-in-law") may not have known who the named beneficiaries were. The requirement to notify "interested persons" is usually done by publishing a notice in a newspaper of general circulation in the county where the deceased person lived.

From what you write, you and your wife apparently knew of this man's death shortly after he passed away, and you indicate that you have "been waiting for the will to be probated". If your wife thought she had a legititmate claim, she should have said something.

If you live in or near the county where the probate was filed, you and your wife should go to the court and look at the file -- it's a public record.

Edit:

Okay, so it was your wife's father who passed away. Where did your wife's father live -- in the county where you live, where the step-mother lives (which I understand is on the other side of Texas), or somewhere else? I'm asking this question because of your comment about where the notice to interested parties was published.

The requirement is to place the ad in a paper of general circulation in the county where the deceased lived -- if your father-in-law lived in the county where the ad ran, the notice was probably correct.

How long had your wife's father and step-mother been married? Were they married at the time of the 2001 will?

With regard to your comments about the re-written will that was not "filed". I have worked in law offices that handle probate matters in Texas, California, Arizona, Nevada and Oregon. I know of no requirement anywhere that a will be "filed" (a term that generally indicates formally submitting papers into an existing court action) or "recorded" (a term that generally indicates submitting a document such as a deed to the county recorder to make it a matter of public record) prior to a person's death. Wills are generally "filed" with the court when the probate proceeding is opened. If your father-in-law re-wrote his will shortly before his death and it was properly executed; i.e., signed, witnessed and notarized, etc., that new will should have nullified the will written in 2001.

Regarding the step-mother's threat to "change the will". She would not have the legal authority to "change" her husband's will . There were possibly two wills, one written in 2001 and one written sometime later. Those wills are what they are. If she somehow created a new will or altered one of the existing wills, that would have been illegal.

As I mentioned in my first response, you and your wife can go to the county where the probate was filed and look at the probate file -- it's a matter of public record and I would be very suspicious if you were not allowed to look at it. You should also be able to get copies of anything that is in the file -- but you will have to pay for the copies. I think it would be worth the time and the trip because it will give you firsthand knowledge of exactly what was filed and what it said. If there was a will, it should have been filed with the court. There should also be accountings that detailed all of your father-in-law's assets.

Also, while you are there you can contact all of the local attorneys and ask if they prepared a will for your wife's father. If you find an attorney who did prepare one, that attorney should give your wife a copy. If you come across an attorney who says he/she prepared a will and won't give you a copy, contact the State Bar Association and complain.

When your father-in-law's probate proceeding was opened, it was probably opened by an attorney. That attorney's name would be in the court file. If that attorney knowingly helped your wife's step-mother use a forged or altered will or knowingly submitted a false affidavit of lost will, that attorney can lose his/her license to practice law.

You say that one of the step-mother's grandsons claimed to have a copy of a will (as did the grandson's attorney). Question the attorney who represented the grandson. I have worked with a lot of lawyers over the years and I haven't known very many who are willing to lie or commit fraud for a client. If that attorney won't talk to you, complain to the Bar Association.

If you can't get reasonable answers from the attorneys involved and/or you look at the court file and things don't seem right, get an attorney to help you re-open the probate.

Answer 2

First off, I'm very sorry for your loss. And, yes, it is required to have a public notice for a specific amount of time published in the newspaper. Usually four months, depending on the jurisdiction. Also, if there were people stated in the will as beneficiaries, the court will make sure that the executor distributes to them according to the will.

Generally, an executor is a person named in the will who receives something from the proceeds of the estate in addition to following the instructions in the will. They usually get what is known as an executor fee so my answer to your question about whether an executor can also be named in the will and benefit from the will; yes.

Answer 3

Isn't that what probate is? Tracking down and notifying the beneficiaries? If you weren't informed then it's because you didn't inherit anything. Sound like you'll have to wait for the wicked step-mother to pop her clogs...

Answer 4

Who ever is the heir of this will. The home belongs to them. This goes way back to England, Cowboys Days. This is for real. Who ever the deceased person said the house belongs to. It's there house. Under any Court of Law. Nationwide.!!

Answer 5

do they have to notify a family member or heir or can they just say that the heir is estranged?

Answer 6

This depends on what state you live in, get a lawyer if you must.