Legal Question in Wills and Trusts in North Carolina

My mother in law passed away 3 years ago from a battle w/ cancer. Her oldest daughter had the will changed without anyones knowledge. She also failed to tell anyone about the mothers cancer insurance. After her death the checks started rolling in. Nooneknows how much came in, but the "new" will left evrything to her daughter and ommitted the 2 other grandkids and the 2 other children. We recently found out the estate has never been filed and nothing was ever done to settle. The "real" will is in the possesion of one of her kids. Can the 2 other kids file the estate in the county she was living in at time of death and can they use the original will if no other will is presented? This is NC

Asked on 9/08/12, 7:12 am

1 Answer from Attorneys

What you state is impossible. No one can legally have anyone's will changed if it is done by an ethical and competent attorney because the attorney necessarily has to meet with the client and do what the client wnts not the daughter.

Insurance checks have nothing to do with probate. Insurance is a non-probate asset and the proceeds will be paid to the named beneficiary. If the funds were paid out to the daughter, then the other siblings would have to sue the sister alleging that the beneficiary form was changed illegally or was a forgery and seek to have a constructive trust impsosed on the funds. If there is no proof of that and if the mother-in-law had a valid beneficiary form making the daughter the beneficiary, then there is no problem. The daughter was neither obliged to tell the other siblings about it or use theg money for her mother's bills or the benefit of the siblings or mother's estate.

If the mother in law died 3 years ago, why was nothing ever probated by anyone? It is a crime to conceal a will and when nothing was done for 6 months, any of the other children could have compelled both the production of the "new" will or sought to probate the will in possession.

Whoever seeks to probate first then whoever has the other will can file what is called a caveat. Depending on the circumstances, the "new" will may have revoked the prior will. In such case, the new will might be thrown out unless it was indeed a forgery as implied.

Since no one has seen these documents, I suggest tthat the other siblings hire a probate litigation attorney in the county where the mother-in-law lived prior to her death.

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Answered on 9/08/12, 10:11 am

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