Answers to Frequently Asked Last Will and Testament Questions
The Executor of the Will is responsible for following all of the mandates specifically outlined in said Will as to the distribution of an estate.
But if a Last Will and Testament lacks clarity, the decision is not up to the Executor of the Will to interpret those unclear directives nor to make changes to the stated distribution.
The distribution of property pursuant to a Last Will and Testament is done through the probate process, by filing a probate action in the appropriate local probate court.
The probate court’s rules will dictate the means, method and duration of contacting potential beneficiaries.
A probate court action could be filed to compel the life estate holder to maintain the property and prevent spoilage.
But there is no guarantee the court would agree with the motion nor compel any action.
Any Last Will and Testament that is in possession of the Executor or Executrix can be submitted to the probate court for administration upon the death of the Maker. How that Will will be treated by the Probate Court depends upon a number of issues.
In most cases, a letter of administration (or a similarly named document) will be issued by the probate court that is administering the estate of the deceased.
That document will provide the authority to the Executor to conduct business on behalf of the estate, and would be accepted by most banks and other property and financial service providers.
Thus, a probate case must be initiated to obtain such a letter.
In most cases the Executor of a Last Will and Testament is required to provide a report to the probate court regarding the administration of the estate.
If an asset listed in the Will cannot be located, that asset would be included within this report.
Beneficiaries (and any other persons specifically named in a Last Will and Testament) SHOULD NOT act as the witnesses to the maker’s signature on that Will, to eliminate any possible conflicts of interest.
In nearly every USA state, a person\’s Last Will and Testament must be signed by the person making the Will (the Testator) and by at least two other persons who are acting as witnesses.
Theoretically yes, one could use estate planning documents to designate child custody to someone besides a biological parent.
But the other parent certainly could contest guardianship after the death of the Will/Trust-creating parent, even if sole custody was granted in a divorce — regardless of the stated instructions in those documents.
Regardless of the desires of all the siblings / beneficiaries, a piece of property cannot simply be assigned to one person if a Last Will and Testament does not exist or specifically direct as much.