Lost original will....

[Carl jones]

Jurisdiction

South Carolina

Long story short, my little sister and I have an uncle who has recently passed away from cancer.(Colombia South Carolina) He was worth approximately one to $2 million. After his diagnosis two years ago he made a will that placed everything into a revocable trust. My sister and I were named as the sole beneficiaries of the trust. My father was named the executor of the will and the trustee. After his death the original Will was nowhere to be found. My uncle had it in his desk along with the original trust. The original trust was found just not the original will. My uncle was not married nor did he have any children. My grandfather was very upset that he left everything to my sister and I and nothing to the rest of the family. As they were all on very bad terms for the majority of his life. There were multiple family members in and out of his house the last few days/ weeks of his life. We believe the will was intentionally destroyed after he died or right before either by my grandmother or other family members angry about where the money would go. his estate lawyer said without the original Will my grandfather would have to sign off on a copy of the will to probate. He is refusing to do this and wants to take the estate for himself via intestate. He(my uncle)did mention the last few weeks of his life the possibility of changing his will for donating more to charity. He died before he could make the changes or decided against changing it.. What are the chances of us being able to probate a copy of the will? If we were to hire a lawyer how long could we tie the estate up for? 3 years? 5 years? Thanks... Carl J....

 

[adjusterjack]

What are the chances of us being able to probate a copy of the will?

Slim to none.

If we were to hire a lawyer how long could we tie the estate up for? 3 years? 5 years?

Yes, could be that long. And a $2,000,000 estate could eat up a few hundred thousand in attorney fees.

My father was named the executor of the will and the trustee. After his death the original Will was nowhere to be found. My uncle had it in his desk along with the original trust. The original trust was found just not the original will.

After whose death: your uncle or your father?

If the original of the trust is extant and the trust was properly written and property and accounts were properly owned by the trust, then the trustee (or successor trustee) could probably handle that part of the estate relatively quickly but the rest of it may have to be probated under intestacy.

Frankly, if you and your sister expect to salvage anything from your greedy relatives you'll have to hire your own lawyer ASAP to represent your interests and not rely on somebody else's lawyer who would be representing the interests of somebody else.

 

[Cjones]

Thanks for responding so quickly..

After my uncle passed.. Was a little confusing there.

Unfortunately the will passed everything into the trust. So there is nothing in the trust.

He was in contact with his lawyer(my uncle) a week before passing and never indicated he wanted to revoke his will.

When you say "slim to none " even if we can prove with testimonies from his lawyer and others that he would not have revoked or destroyed his will because he would not want his father to have anything.. ?

What kind of legal fees could my sister and I expect, even if we come out with nothing? A few hundred thousand? I know that's a hard question to answer with limited info given.

Thanks again Jack...

 

[army judge]

Thanks for responding so quickly..

After my uncle passed.. Was a little confusing there.

Unfortunately the will passed everything into the trust. So there is nothing in the trust.

He was in contact with his lawyer(my uncle) a week before passing and never indicated he wanted to revoke his will.

When you say "slim to none " even if we can prove with testimonies from his lawyer and others that he would not have revoked or destroyed his will because he would not want his father to have anything.. ?

What kind of legal fees could my sister and I expect, even if we come out with nothing? A few hundred thousand? I know that's a hard question to answer with limited info given.

Thanks again Jack...

I suggest you speak with a lawyer or two.
I suggest you and your sister cease talking about this with other relatives, especially your uncle (the lawyer).
If your deceased relative placed his estate into a trust, a will is irrelevant.
People use trusts to convey their estates to others to AVOID wills and probate court.
Take whatever proof you have, which won't be in a will, to a couple lawyers to see what happened to the estate.

I suspect a couple of things might have occurred.

The lawyer you eventually hire will find out.

Don't cry over spilled milk.
House cats love spilled milk.

 

[adjusterjack]

Unfortunately the will passed everything into the trust. So there is nothing in the trust.

If the trust owns nothing then the terms of the trust are irrelevant.

He was in contact with his lawyer(my uncle) a week before passing and never indicated he wanted to revoke his will.

When you say "slim to none " even if we can prove with testimonies from his lawyer and others that he would not have revoked or destroyed his will because he would not want his father to have anything.. ?

"When the testator takes possession of his will and it cannot be found at his death, the law presumes that the testator destroyed the will 'animo revocandi' (with intent to revoke)"

Google Scholar

In the cited case the court upheld the copy of the will for a variety of reasons but also addresses the reasons why a copy of a will might not be upheld and cites other case decisions on the matter which you are welcome to read so you can educate yourself on the potential issues.

When you say "slim to none " even if we can prove with testimonies from his lawyer and others that he would not have revoked or destroyed his will because he would not want his father to have anything.. ?

Let's face it. Everybody will be testifying in a variety of self serving directions when $2,000,000 is at stake and it's almost a guarantee that the matter will end up on court.

What kind of legal fees could my sister and I expect, even if we come out with nothing? A few hundred thousand? I know that's a hard question to answer with limited info given.

I don't know. I have read that multi-million dollar disputed estates can eat up barrels full of money very quickly.

You can call around to probate attorneys and ask about costs to litigate but I suspect that, as soon as you walk into any attorney's office, you need to be prepared to fork over at least $5000 as a retainer and have another $25,000 in the bank to keep it going for a few months. It's anybody's guess where it goes from there.

At the moment, though, has your grandfather opened probate under intestacy?

 

[Cjones]

Yes, my uncles estate attorney, the one who drafted the original will and trust has opened probate under intestacy a few weeks ago. The lawyer said if the original will shows up it can be submitted at that time. For now they are proceeding with the probate under intestacy.

Can I assume that our grandfather will have to hire a lawyer as well? Costing him about the same in legal fees? I'm hoping we can reach some family settlement agreement before we start piling up legal fees.

Thanks again for your response and assistance. .

 

[txls]

Does "the one who drafted the original will" not have a copy?

 

[Cjones]

Yes, we all (my sister, father and I) have copies of the original signed will..my uncle made copies for us last year and told us where to find the original after he passes.. Unfortunately someone else got to it before we did.. We only have the original signed trust and medical POA.. Not the original will.. Thanks..

 

[army judge]

Yes, we all (my sister, father and I) have copies of the original signed will..my uncle made copies for us last year and told us where to find the original after he passes.. Unfortunately someone else got to it before we did.. We only have the original signed trust and medical POA.. Not the original will.. Thanks..

I suggest you take your documents and visit at least three attorneys.
Most attorneys will meet with a prospective client for 20-30 minutes at no charge.
I think you'll be pleasantly surprised after you return home.

 

[adjusterjack]

Can I assume that our grandfather will have to hire a lawyer as well?

Maybe not.

Under SC's intestacy law if your uncle had no surviving spouse and no surviving children his estate would go to his parent (your grandfather). See 62-2-103 at:

Code of Laws - Title 62 - Article 2 - Intestate Succession And Wills

Your grandfather can just sit back and relax until you and your sister hire a lawyer to petition the probate court to consider the "copy" of the will.

When he does, it's likely to cost him a lot less in legal fees because the presumption I explained earlier works for him and against you.

I'm hoping we can reach some family settlement agreement before we start piling up legal fees.

Under intestacy, grandfather gets it all. Why would he settle? You have no leverage until you do start piling up legal fees and become a real threat.

Yes, we all (my sister, father and I) have copies of the original signed will..my uncle made copies for us last year and told us where to find the original after he passes.. Unfortunately someone else got to it before we did.. We only have the original signed trust and medical POA.. Not the original will..

Yet you also have this:

He(my uncle)did mention the last few weeks of his life the possibility of changing his will for donating more to charity. He died before he could make the changes or decided against changing it..

Maybe he destroyed the original will in preparation to make the changes but didn't last long enough to do it.

Read that case decision I posted earlier as well as the cases cited in that decision and see how that works for your grandfather and against you.

 

[Cjones]

Maybe he destroyed the original will in preparation to make the changes but didn't last long enough to do it.

I'm sure He didn't destroy it. A judge might see it differently and I can see why. One would assume the trust would have been destroyed as well, but it wasn't.

Is this something that could go before a jury? I've searched the probate laws and can't find a clear answer. I may be biased but I feel we have a substantial amount of evidence in our favor...

Thanks again for your responses...

 

[adjusterjack]

I'm sure He didn't destroy it.

No, you're not sure.

You THINK he didn't destroy it.

Big difference.

Remember, the legal presumption is that he DID destroy it and the burden of proof is on you to prove that he didn't (or somebody else wrongfully did) and that the copy is valid.

I feel we have a substantial amount of evidence in our favor...

Then it's time to put your money where your feelings are and hire an attorney.

That's the long and short of it.