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The probate system can help disappointed heirs clarify asset distribution.

Like physicians, trusts and estates attorneys often are asked for free advice during social occasions. I was approached recently at a party by a white collar defense lawyer. My friend was disturbed: A beloved maiden aunt had passed away, and now my friend had heard that she was not going to get the aunt's family silver flatware that had been promised to her since childhood.

On my friend's last visit to her aunt, the aunt had shown her the will in which the bequest of the silver was memorialized. My friend heard that the promised family silver was now in the hands of a cousin who had moved in with the aunt shortly before her death and that he apparently had inherited all her property.
"Isn't there something I can do about this?" she asked. "Can't I challenge the will or something?"

BYPASSING PROBATE

The answer for my friend depends upon the method by which the cousin obtained her aunt's property. Most attorneys who don't practice in the area of trusts and estates law do not remember from law school that a last will and testament only governs the distribution of that portion of a decedent's property that is subject to probate, the judicial procedure associated with the transfer of a decedent's property.

Property subject to probate is property that is otherwise not transferred by (1) beneficiary designation form (such as a life insurance policy or a retirement account), (2) operation of law (such as property titled jointly with right of survivorship), or (3) a trust instrument.

If the elderly aunt had neither transferred title to her property to the nephew before her death nor to a trust, then her property likely would be distributed through the probate court, in a manner specified in the aunt's most recent will.
If no will exists (as happens with the majority of Americans), the property will be distributed in accordance with the laws of intestacy of the state where she resided at her death. In most jurisdictions, a married decedent's assets go to the decedent's spouse and children (with the percentages varying); a married-but-childless decedent's assets are distributed to just the spouse; and an unmarried decedent's assets are distributed to any of the decedent's children, usually in equal shares.

The assets of an unmarried and childless decedent, such as my friend's aunt, would be distributed among the decedent's parents and siblings, if any, and if none, as in my friend's case, then to next-closest surviving blood relatives such as nieces and nephews.

FINDING THE WILL

So, after determining that the elderly aunt had not executed a trust and knowing that she at one time had a will, my friend needs to ascertain the contents of the aunt's last will and testament.

How does she do this? In most jurisdictions, both legatees (beneficiaries under the will submitted to probate) and heirs (beneficiaries by the laws of intestacy) receive formal notice of a probate proceeding. Notification is the responsibility of the executor in some states; in others, the probate office sends the notices. In addition, the probate process usually requires "publication" in a newspaper of the appointment of an executor of a decedent's estate.

A probate proceeding is a public proceeding, and anyone can access the court file. Thus, the next course of action would be for my friend to contact the probate court of the jurisdiction where the aunt resided at her death, inquire whether a probate matter is pending in the name of the aunt, and order a copy of the file. In some jurisdictions, probate documents are available online, but it is usually necessary to visit the clerk's office or make a telephone call to order copies of documents in the probate file.

But what if my friend called the probate court and there was no record of a will being filed or a probate action pending? (This happens, though if the aunt had a will at her death, the law of the relevant jurisdiction probably requires the person with custody of that will to file the will in the appropriate judicial office of the county where the decedent lived.)

It is possible that the aunt transferred ownership of all her property to the nephew before her death, in which case my friend would have limited recourse, at least in the probate court. And it is possible, but not probable, that the late aunt destroyed her will before her death.

If no will is found for my friend's aunt, the aunt's probate property would be distributed in accordance with the laws of intestacy of the state where she was living at the time of her death. In such a situation, there is little that the heirs at law can do to challenge the distribution scheme of the relevant state law. In this case, however, the state law would not explain the failure to distribute the silver to my friend because my friend, a niece, would have the identical standing as the nephew.

CONTESTING THE WILL

Assuming a will existed that left all the aunt's property to the nephew, how could my friend contest the will? In the Washington area, individuals with standing to challenge a will generally must do so within six months after the will is filed with the probate court or the personal representative (or executor) has been appointed. (Virginia also provides another procedure for challenging wills with a deadline of one year.)
Moreover, in Maryland, Virginia, and the District of Columbia, a party seeking to challenge a will must establish that he or she would benefit from the success of the judicial action in which the probated will is being challenged.

OVERTURNING THE WILL

What are the bases for challenging a will? The easiest and quickest attack is to examine the facial validity. Is the will dated, is it signed by the testator (the person leaving property), is the will properly witnessed, does it appear to dispose of the testator's assets?

In Maryland and the District, it is not necessary that the two required witnesses to a will actually sign their names to the document at the same time or that they witness the testator signing his name to the instrument. It is best if the testator declares to the witnesses that he knows the document he is signing (or has signed previously) is his last will and testament. It is not necessary for the witnesses to know the contents of the will.

In Virginia, the practice is to use a signature style on a will that makes it "self proving" such that the testator and the two required witnesses sign in the presence of one another, sign the document twice, and all have their signatures notarized. This avoids the necessity of requiring the witnesses to a will in Virginia to participate in the probate process. Indeed, many practitioners in the Washington metropolitan area utilize this format for will signing just to limit challenges to and complications from the attestation process after the death of the testator.

The next level of attack is to investigate the capacity of the testator. In other words, did the testator have sufficient mental ability to execute the will?
"Capacity" for executing a will is not the same as competency. Old age, physical feebleness, or eccentricity does not establish that a testator necessarily lacked capacity. Generally speaking, the test for determining capacity is whether the testator knew the nature and extent of the property he or she possessed at the time the document was prepared and signed, whether the person understood the act being performed (i.e., dictating the distribution of that property), and whether the testator knew the identity of and relationship to the persons who were the beneficiaries under the instrument.

In most cases, a challenger of a will would benefit from having strong medical/psychiatric testimony from an independent party about the testator's mental condition at the time of the preparation and execution of the will.

FRAUD AND UNDUE INFLUENCE

What are other grounds for contesting a will?

Many times an elderly and infirm client is brought to a lawyer's office to update a will accompanied by a person who is a care-giver and frequently a potential beneficiary. It is common for that care-giver to assist the elderly client to a seat in the conference room and then sit down right beside the client before the interview begins. Frequently if the care-giver is also a close relative, he or she will try to insist upon being in the room when the client is interviewed by the attorney, even though that person's mere presence in the room could provide grounds to challenge the legitimacy of the will itself.

The experienced estate planning professional always insists upon interviewing and conducting the legal work with the testator alone. This obviously is for the purpose of determining capacity and the client?s true intentions but also to eliminate the possibility that a disgruntled (and disinherited) family member (or other natural beneficiary) could utilize the circumstances of the interview and the will execution process to support a claim of incapacity, undue influence, mistake, or fraud.

If the attorney or testator is concerned about a claim of incapacity or undue influence, particularly where a testator is disinheriting a family member or there is concern about a potentially litigious beneficiary, an experienced estate planner might include another partner or associate from the firm in the room, if only for a brief period of time, to provide an additional witness to the client's capacity and familiarity with his or her property and to the client's ability to express dispository desires.

GETTING THE FAMILY SILVER

These general principles reveal how my friend could proceed to address her concern about the promised silverware from her aunt. As a potential heir of the deceased maiden aunt who died without any children or surviving siblings, my friend should automatically receive notice of the filing of the probate estate and sufficient information from the court explaining how she could file a challenge to the will.

She is entitled to see everything on file in the probate office, including the will itself. In some jurisdictions, such as the District, all prior wills (to the extent they exist) should also be filed.

She then can examine the date of the will (which is particularly important if it was after the date on which the nephew moved into the aunt's house), evaluate any evidence about the aunt's condition around the time that the will was signed, and challenge the nephew's right to keep the family silver.

There's an old saying: "If there's a will, there, there's a way." Here, if the elderly aunt had a will that differs from the one my friend saw on her last visit, my friend can use the probate process to seek an answer about why she never received her aunt's silver.