Question: My father wants to read his wife's (my mother's) last will and testament because my aunt got all rights to everything my mother owned/had, but my father thinks that my aunt is doing things that went way beyond what the will stated. I need to know how he can go about getting a copy of the will and testament and what are his rights to having it? T.
Answer: Dear T - Something is not right here! If your father is your mother's surviving spouse, then he certainly has the right to read his wife's last will and testament. Can you imagine him not having that right!
If your mother left a will, it would have to be admitted to probate before it could control the distribution of your mother's property. Before it could be admitted to probate, someone would have to submit it to the court; the court would have to notify all interested parties of the will and give them the opportunity to examine it; the court would then hold a hearing on the admissibility of the will and, if anyone objected, would conduct a trial to determine the validity of the will. Even then, any aggrieved party would be able to appeal the probate court's decision to a court of general jurisdiction.
Given that process, it seems unlikely that your father would not have been notified of his wife's will or his right to examine it.
But let's say he wasn't notified. In that case, he should find out if the time limit for appealing the admission of the will has expired. If he was notified of the hearing, the statute of limitations might give him only 30 days to file an appeal. However, if he wasn't notified of the hearing, then he may have up to a year to file an appeal. You'll have to check your state laws to determine the actual time periods.
Even if your father is not interested in contesting your mother's will, he still has certain valuable rights in relation to the settlement of your mother's estate. For example, he can examine your mother's will at any time and he can obtain a copy of it if he wishes. In fact, he can examine the entire contents of your mother's probate file. All he has to do is go to the probate court where your mother's estate is being probated and ask to see it. He should also receive notice of any and all hearings held in regards to your mother's estate. In fact, if your aunt has been appointed as the Executrix (personal representative) of your mother's estate, she should provide your father with a copy of all documents she files with the probate court and other government agencies, including the federal government. If she doesn't, then your father should ask the probate court to instruct her to do so. That is his right.
Your father should be aware, also, that he has the right to receive a share of your mother's property even though he wasn't given anything under your mother's will. This so-called "statutory share" varies from state to state, but generally is based upon the first $100,000 or so of the probate estate plus a percentage of the excess, if any, depending upon whether there are surviving descendants, etc. Your father should check this out with a local estate planning attorney. He should also do this immediately because most states have a time limit for claiming a statutory share.
Finally, as your mother's daughter, you also have the right to examine your mother's will and to receive notices of hearings, etc., just as your father does. In addition, you may also have the right to receive a share of your mother's estate even though you were not named in your mother's will. Most states have statutes that provide for surviving children when they are omitted from their parent's wills without any mention. These omitted children are referred to as "pretermitted heirs." Again, you should contact a local estate planning attorney to find out exactly what your rights are with regard to your mother's estate.
Hope this helps. But, remember, the probate courts are there to help you. They won't give you legal advice, but they will give you access to your mother's file, they will let you know what the proper procedures are, and they will enforce your legal rights. So, go for it!
Michael P. Pancheri, J.D., LL.M. (Taxation) maintains a law practice in the State of Connecticut with an emphasis on trusts and estates. He is also the founder and CEO of the Living Trust Network. You may contact him by email at email@example.com.