Can terms of a will be legally kept secret before filed in court? Let's say a father has two sons and he creates a will. He leaves something to son A and something else to son B. He doesn't want either of the sons to know the amount the other gets. And let's assume neither of the sons are aware of the total amount in order to figure out the other's portion of the inheritance. We can introduce more than 2 sons to remove the assumption of the sons' unawareness of the total. Is it possible to create a will like that? I am in the United States. If it varies by state, could you share examples of states with different answers? CLARIFICATIONS: The father doesn't want his executor to disclose son A's inheritance to son B and vice versa. If the sons want to share this information between them, that's their choice. The will is a complete secret from his family until his death.
FIRST: A last will and testament does not have to be disclosed to anyone [1] prior to death. But at death, notice of the commencement of a probate proceeding which is necessary for the will to be given effect must generally be given to: (1) everyone who takes under the will, and (2) everyone who would take if either that particular version of the will were invalid and a prior will that it revokes is valid, and (3) everyone who would take if there were no valid will, and (4) creditors whose claims are accepted as valid, but are not paid due to the insolvency of the probate estate. Everyone entitled to notice of the probate of a will is entitled to see the last will and testament submitted to the court in its entirety. The case could be placed under seal to prevent people other than interested parties and their lawyers from seeing the will, but not sons of a decedent who are interested parties by definition even if they get nothing under the will, because they would take if there was no will. SECOND: This said, it is easy to make a secret transfer effective upon death via a variety of non-probate transfers such as a beneficiary designation on an account, or the provisions of a trust, that don't require a court proceedings to take effect the way that a will does (people who think that they can avoid probate by having a will are fundamentally mistaken, probate is a court proceeding necessary to give a will legal effect). Only some of these methods of making a secret gift work if the estate is subject to estate taxes which requires disclosures to be made on gift and estate tax returns of all transfers taking effect at death (something that can be circumvented by making a transfer during life that is not reportable during life because it is within some exception to gift taxation). NOTES: [1] Usually a will has to be shown to the two witnesses to a will, unless it is executed under the recently repealed Louisiana law allowing for a &quot;mystic will&quot; which has seven people witness the envelope but no one witness the will itself prior to death. Of course, holographic wills, substantially in the handwriting of the person writing them, don't have to be witnessed at all.
Since Probate had already closed (12/20), is it legal for the Probate court to, in essence, change the terms of the will? I have several witnesses willing to provide affidavits to the effect that my mother, the deceased, made it clear that I would get the real-estate and that the grandson in question would get nothing. Often, for a relatively short period of time after an estate is closed, it can be reopened and the judgment closing the estate can be set aside for good cause. This is also true in most other kinds of lawsuits. if I cannot beat this challenge, can I remove myself as beneficiary and have the Probate court declare that all 5 blood-related grandchildren will get equal shares? Removing yourself as a beneficiary is called filing a &quot;disclaimer&quot; in legalese. It means to refuse to accept a gift or inheritance. But you can't do that if you have already received any personal benefit from the estate and there are other statutory restrictions. For tax purposes, the deadline to do is nine months after the date of death, but the state law deadline could be different. What would happen if you do so depends upon the language of the will. Usually, gifts to a group of people are made &quot;per stirpes&quot; (also called &quot;by representation&quot;) which means that if a child predeceases or makes a timely disclaimer that their children share in the share that their parent would have received only. It is possible that it says something different, but that would be by far the most common provision. Under the original Probate interpretation, when the real-estate sold, I invested the proceeds in the stock market and there have been losses. If the challenge wins, will I have to come up with the delta--since the investment losses occurred under the original interpretation? If you had the authority to sell the real estate (which you probably did if a third-party title company went through with the transaction), then their claim would almost surely be limited to the proceeds of the real estate and not &quot;the delta&quot; unless the person entitled to take could show that you breached your fiduciary duties in the manner in which you invested the proceeds, for example, by investing all of it in a small number of penny stocks, rather than a diversified portfolio suitable for the purposes of the estate. Also, there is a question over whether the stock investment was made by you as the executor, and was subject to fiduciary standards, or was instead made after it was distributed to you outright. Further, there is the question of whether the estate can actually be opened if you gave notice of the closing of the estate to everyone who was entitled to it, including the grandchild, and whether the grandchild was entitled to it. You really need to hire a WV lawyer who handles probate cases at this point and would be doing yourself great harm by trying to represent yourself. Probate procedures are too arcane for you to reasonably have faith that you are doing it right for yourself.
Yes. There is both a duty to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a right for the court to demand access to other specific records. In england-and-wales the applicable rules are found in Part 31 of the Civil Procedure Rules. For example: Standard disclosure 31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. Specific disclosure (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. Party's control 31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control. (2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it. Right of inspection 31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies. (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. Inspection and copying 31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. And, in case there's any doubt that this applies to electronic records: Meaning of document 31.4 In this Part – ‘document’ means anything in which information of any description is recorded;
It might maybe be enforceable under contract law. One party offers something of value (information) under the condition that they get something of value (non-disclosure). Obviously there has to be agreement in advance of disclosure. The matter is even clearer-cut when the information is protected by privacy laws, therefore conditional consent makes the difference between invasion of privacy and not. Cohen v. Cowles Media, 501 U.S. 663 is a case where information was disclosed to reporters, provided that his identity be kept confidential. While the reporters agreed, they nevertheless published plaintiffs name, and he got fired. He sued (fraudulent misrepresentation and breach of contract), and ultimately won (under the theory of promissory estoppel).
You make spending a night in the house within, say, 3 months of your death, a condition of the bequest In general, while conditions in wills are ethically questionable, there is generally no legal impediment. They are binding unless: it violates the rule of law; it is uncertain or impossible to fulfil; or it is contrary to established public policy. Assuming you own the house in question (and still own it when you die) and the house still exists (e.g. it hasn’t burned down) then the condition would be enforceable. As for your second question: No. See What happens if a person is thought to be dead and their estate is administered, and then they turn up alive? Also, if you actually faked you death, rather than just being missing, you’re going to jail for fraud.
Short Answer Usually, a divorce decree doesn't leave former spouses as co-owners of the former marital residence, but sometimes this happens anyway. To oversimplify, if the divorce decree leaves a couple a co-owners, either of them can usually force the sale of the property and a division of the proceeds left after paying off the mortgage, in a special kind of lawsuit called a partition action. The rights of mortgage lenders and lienholders against both former spouses cannot be changed without paying off the loan in most cases. If a spouse who lives there isn't able to pay off the old loan and refinance it in their name alone, this usually means that the house will be sold to a third party with the net proceeds of the sale split. The net proceeds from the sale of the house are divided in proportion to their ownership interests in the co-owned property that can sometimes be tricky to calculate. Often the ability of either party to force a sale of the house in a partition action leads the parties to reach a settlement in the shadow of the possible outcome. Long Answer Caveats This answer sets forth the general rules that apply the vast majority of the time. There are some rare and obscure exceptions to these rules that can apply buried in dark corners of Texas law, and this answer doesn't not comprehensively ferret out every single such exception to the general rules. This answer also doesn't discuss ways in which outcomes that shouldn't be allowed by these rules can be made possible by one party or another's procedural mistakes in the court system, which is fact specific and can arise in certain situations. What Is A Divorce Decree? The only way a divorce case can end is for the divorce to be called off (either by mutual agreement or because one or both of the divorcing spouses die before the case is over), or for a divorce decree to be entered by the court, ending the marriage and establishing the rights of the parties after the divorce with respect to each other and their property. A divorce decree can be entered either by mutual agreement of the spouses in a divorce case, but if they can't agree, the judge in the divorce case will impose a divorce decree dividing property and handling other issues in the divorce as the divorce judge sees fit consistent with Texas law. Either way, it isn't official until it is signed by the judge. Sometimes a divorce decree will be very short, but will incorporate by reference one or more other documents like a mutually agreed separation agreement, or a parenting plan, or a schedule of who gets what property in the divorce. The Role of A Divorce Decree Almost anything can be done by mutual agreement (although all decisions related to children must be approved by the judge with a finding that the agreement is in the best interests of the children). A judge has far more limitations on what the judge can do in a divorce decree to establish the post-divorce property rights of the ex-spouses, but the judge still has great discretion in how the judge may make those decisions. Usually, the ownership of a house is handled in a way that leaves only one spouse owning the house in connection with a divorce proceeding. For example, ex-husband may be ordered to transfer the house to ex-wife, and ex-wife may be ordered to transfer her pension to ex-husband in exchange, if that is what the divorce decree says. One of the grounds for appealing a judge's divorce decree decision to a higher court is that the judge didn't adequately separate the spouses financially. But that doesn't mean that a divorce decree can never leave ex-spouses as co-owners of property. Once the divorce case is over, if nothing in the divorce decree separates ownership of the house, then the ex-husband and ex-wife have the same rights with respect to each other that a house co-owned by two people who were never married would have (unless the divorce decree states otherwise). Some divorce decrees, however, prohibit the sale or transfer of the house without the mutual consent of the former husband and former wife (for former husband and former husband, or former wife and former wife, in a same sex marriage), either indefinitely, or for some time period defined in the divorce decree. In rare cases, the divorcing spouses could agree to do something that leaves neither of them owning their house, like agreeing to sell it, or agreeing to give it to charity, or putting it in the trust for their children. The Rights Of Unmarried Co-Owners Of Property When A Divorce Decree Doesn't Provide Otherwise A lawsuit to terminate co-ownership of real estate without the consent of all of the owners of the real estate is called a partition action. In the case of a house that cannot feasibly be divided in kind the way that, for example, farmland could be, what a partition action does is force the house to be sold, with the proceeds divided. Conceivably, one spouse or the other could be both one of the two sellers, and one of the buyers at the partition sale if the spouse that is both selling and buying is the highest bidder in a sale that is open to the general public. In this case, the partition sale is functionally equivalent to cashing out the equity of a spouse who is not the highest bidder at a partition sale. Frequently, given the inevitability of an ultimate partition sale in these cases, the parties will instead reach a mutual agreement to either have one party cash out the other for an agreed valuation of the house and allocation of the equity in the house. Alternatively, another common form of settlement is that the co-owners will agree to sell the house for an agreed price to a third-party and then to divide the net proceeds either according to a pre-agreed formula or in litigation over net proceeds from the agreed sale held in a court controlled bank pending a judicial determination of each spouse's share of the proceeds. Partition actions aren't the most expensive kind of court case, but usually, at least one of the parties needs to have a lawyer for it to go smoothly and the legal fees aren't usually negligible either. Critically, the fact that &quot;mom pays mortgage and lives in the house&quot; doesn't matter much in a partition action after the divorce is over. Paying the mortgage and living in the house are frequently considered to cancel out, rather than changing the share of the equity to which each former spouse is entitled. An ex-wife cannot just get an ex-husband off of the title without being the highest bidder at a partition sale. If ex-husband is the highest bidder, he will stay on the title and she will be off the title and will have to move out or pay him rent. If the third-party is the highest bidden, she will have to move out or pay rent to the third-party, and neither of them will be on the title anymore. The Rights Of Mortgage And Lien Creditors The fact that both ex-spouses are responsible to the mortgage company (and any lienholders who have rights identical to mortgage companies for the purposes of this question) if they were both on the mortgage before the divorce can't be changed without the mortgage lenders consent (which is almost never given), unless the mortgage is paid off in full and (if necessary) refinanced. If there is a partition sale, the mortgage debt must be paid off before either spouse gets any of the proceeds from the partition sale. The Impact of Community Property Laws In Texas One complicating factor in this analysis is that Texas is a community property state. So, to determine what share of the equity in a house belongs to each spouse (if any) you have to apply community property rules that are deceptively simply, but are quite complicated to apply in practice. The general rule of community property in Texas is that property acquired before the marriage or by gift or inheritance by a single spouse, or allocated to a spouse in divorce decree, is separate property. All other property of the couple of community property. Any property for which separate property status can't be proven, or for which there is too much co-mingling of community and separate property, is community property. A spouse is entitled to 100% of the that spouse's separate property, and in addition, to 50% of the community property of the couple, upon divorce. Also, at death, a decedent can't leave the surviving spouse's separate property to someone else, can't leave the 50% of the property that is community property immediately prior to death, that is owned by the surviving spouse, to anyone other than the surviving spouse, without the surviving spouse's consent. Ideally, the divorce decree will spell out what percentage of each piece of land or other property that is owned by each former spouse once they are divorced. But, sometimes a divorce decree entered by mutual agreement, or by a judge, is sloppy and doesn't make that point clear. If the divorce decree doesn't clarify what percentage of the property is owed by each ex-spouse, this has to be cleared up later when the house is sold in a partition action, if there is no mutual agreement to the contrary. A valid pre-nuptial agreement, or a valid post-nuptial agreement, however, can modify the community property rules of Texas that would otherwise apply. The application of community property rules is also particularly complicated in cases where the couple spends part of their marriage in Texas, and part of their marriage either in a state that is not a community property state or that has very different community property laws on some key issues. The Impact Of Post-Divorce Economic Activity Related To The House Also, the amounts spent by the co-owners of the house after the divorce, and the question of whether one of the co-owner has been excluded from the co-owned house by the other, could change the share of each co-owner in the equity in the house after the divorce. The exact rules for how these adjustments are made are complicated, and are often subject to a judge's discretionary decision about this issue should be resolved in a partition action. Footnote Re Gender All of the rules discussed above, even if I haven't worded my explanations that way, are gender neutral. The rules are the same for ex-husbands as they are for ex-wives (and vice versa) in opposite sex marriages, for ex-husbands in same sex marriages, and for ex-wives in same sex marriages.
If this is Florida, then a will has to be written. If there is no written will, the estate falls under the law of intestate succession, part 1. Per § 732.502, every will must be in writing, signed, and witnessed (therefore a voice mail is not a will). If there are any relatives, they may be entitled to a share; otherwise, the estate goes to the state, where it is sold and the funds go into the state school fund (§732.107).
It is certainly possible to give gifts to your relatives (or to anyone really). But, the harder question is whether or not it is really a gift. A characterization of a transaction as a gift is less likely to be questioned if it is between related parties, and it is less likely to be questioned if it isn't obviously a quid pro quo. If you told your brother that you would make a gift to him of all of the appreciation in the house, if he made the guarantee in advance, it would be a guarantee fee (or an equitable or nominee ownership) rather than a gift. But, with the timing and motives described in this post, it is certainly a closer call. The fact that the "gift" amount exactly matches the appreciation casts doubt on the theory that this is really a gift, but doesn't absolutely clearly require the conclusion that it is not. This could end up being resolved either way, and ultimately, could be very dependent upon the detailed facts and how they are presented to the person determining if tax is owed.