Dear Mr. Premack: I had a cousin (Betty) suffering from MS. I helped take care of her since 2005. She never married and she had no children. About that time, she thought she was going to die and sent a letter to a cousin in California (Frank) asking him to take care of her sick brother. Her brother died, but she lived until June 2012. She left Frank $30,000 of life insurance and left me $3,300. Frank used that letter to clear out the house and change the locks and give everything away without asking me. But Betty had told me she made a new Will leaving the house to me. The attorney who wrote it would not give the Will to me. I hired another lawyer, but he did nothing. What can I do? – LA
When a person dies, there are several ways for their assets to be distributed. First, there may be items under contract with third parties. The contracts specify to whom benefits must be paid. Betty’s life insurance was this type of item, and the insurance company paid the beneficiaries according to the contract they had with her. Items held in trust and items deposited to bank accounts with survivorship rights also fit into this category.
Second, a person can designate in a Will how various assets should be distributed. The Will does not ordinarily influence distribution of the items under contract, like life insurance. It does, however, specify heirs to receive other valuable items like real property and bank accounts (unless they happen to be subject to distribution contracts). A Will must be probated to be given legal effect, with the court deciding whether the document is a valid Will.
Third, if there is no contract and if there is no valid probated Will, the state law of intestacy determines to whom various items are distributed. The potential heirs can use a courtroom process called Determination of Heirship to make their claims, and the court will issue an Order specifying to whom various items are distributed.
Betty sent a letter to her cousin Frank in about 2005. You say that when she died, he used it to clear the house and dispose of items. It is possible that the letter was treated as a “holographic will” – one which is entirely in Betty’s handwriting, which expressed testamentary intent (that is, intent to dispose of assets upon her death), and which was signed by her. For it to be legally recognized as her Will, Frank would need to offer it for probate before the courts in the county where Betty had resided.
Thus, the first thing to do is visit the county probate clerk where Betty lived. Ask if a Will has been offered for probate. If yes, ask to obtain copies of the Will, the Order admitting it to probate and the Order appointing an Executor or Administrator. Take that information back to the lawyer you hired. The lawyer may be able to contest the validity of the holographic Will if there are valid legal reasons for such a contest, or if the Will Betty made with the other lawyer can be found.
If there is not a Will admitted to probate, Frank overstepped his legal bounds when he took control of the house and gave away her personal items. Try to locate the Will Betty said she made with the other lawyer. Do not expect that lawyer to have the original; lawyers rarely retain original Wills anymore. It would have been in Betty’s custody. The lawyer may, however, have a photocopy. If your attorney files an application for probate, he can obtain a court order forcing the other lawyer to produce a copy of the Will. (If only a copy can be located, you must overcome the presumption that Betty revoked that Will. This may be a difficult hurdle that cannot be cleared. Even so, proving there was a new Will made later than the holographic Will may invalidate any claim Frank has made using Betty’s letter.)
Finally, if there is no holographic Will and no valid formal Will, you could start a court proceeding under the intestacy laws. As a cousin, you may not be next in line to inherit the house, so tell your lawyer all about the family tree so he can assess the likelihood that you might be an heir.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, September 28, 2012