The death of a loved one is a traumatic experience. That experience can be even more traumatic when your loved one has left a confusing will or no will at all, when the identity of beneficiaries are uncertain, when beneficiaries are in conflict with one another, when assets are mismanaged, or when a beneficiary believes that the loved one’s testamentary wishes are not being carried out.
Beneficiaries have the right to asset distribution based on the instructions in a valid will, or the laws of intestate succession if there is no will. The personal representative or executor appointed to probate the estate has a fiduciary duty to each beneficiary to distribute the estate by law at the direction of the Court. If you believe that someone has taken what is rightfully yours, speak to the personal representative. If the personal representative is the person who has taken the property or is working against your interests, speak with an independent attorney. You are entitled to the assets awarded to you by will or by law.
Yes, but the laws vary from state to state. A marital relationship can override a will such that a spouse may receive a certain share of assets by operation of law regardless of the testamentary wishes of the decedent. If you were left out of a will, contact an attorney to represent your interests during the probate process. In many states, if the decedent is divorced, but has not changed the will to remove the ex-spouse as beneficiary, the spouse will be removed as beneficiary by operation of law.
First, you should determine from the personal representative or from an independent attorney the extent of your rights to your deceased spouse’s assets. Generally, no one should take estate assets until a court has determined through an inventory and final account the extent of probate property. If family members "help themselves" prior to judicial decree, consult an attorney. You may need to file an objection to the inventory and/or final account on a timely basis.
Some states, including Oklahoma, recognize common law marriage. If you and the decedent met the requirements of a common law marriage, such as holding yourselves out to the community as husband and wife and living in a manner consistent with a spousal relationship, you may assert your rights as if you had a ceremonial marriage. A common-law spouse determination will depend on the specific facts concerning your relationship with the decedent. Consult an attorney to determine whether your facts are consistent with that of common law doctrine.
Yes, beneficiaries have a right to challenge an inventory of assets if they do not believe the will or intestate action is being handled correctly by the executor. You must have legal standing to challenge the will, which usually means that you are a beneficiary or an heir. You must be prepared to support your position with evidence of your claims.
Yes, but you will need to present evidence of your claim to the court. There are certain instances when the personal representative can be removed, including but not limited to, where the executor’s interests are in conflict with personal interests, the executor took unauthorized assets in the estate, the executor failed to distribute the assets in a timely manner, or damaged or dissipated the estate.
Dissipation describes instances in which assets are wrongfully expended. If you believe the executor is spending or in some way damaging the assets in a will, you can take legal action. If dissipation is proved, the court can order the executor to repay the estate.
If your loved one is still alive, you may file for a guardianship to protect your loved one from exploitation. If your loved one is deceased when you discover the new will, consult an attorney to discuss options. First you must prove through medical records or other evidence that the decedent was not competent to execute a new will.
Using "undue influence" is considered illegal and a form of elder abuse. If you discover evidence prior to death, consult adult protective services in your area and consider a guardianship over your loved one. If the undue influence is discovered after death, you must show evidence as to the illegal activity.
You may hire an attorney to represent your interests in the estate assets. You have the legal right to challenge the executor of a will or intestate estate in which you have an interest.