Dear Ms. Allison: My father died 3 months ago. Before that, he lived with his daughter in law (the wife of my oldest brother who passed 8 months before Dad). Dad has 3 living sons and 1 living daughter, but my sister in law has pushed everyone aside. She has sold, thrown away and given away estate items. All that’s left are the house and 3 vehicles. Who made her able to do this instead of us? Why isn’t the Will in probate? Who is responsible for starting the probate process, anyway? Lou in Bartlesville
If your father had a Will (“last will and testament”), the person or entity named in the Will as Personal Representative (Executor) has the legal responsibility to offer it for probate. That would begin the probate process in which a judge orders how the estate will be handled and by whom. Of course, the law prefers those who are named in the Will to serve and if not them, then relatives.
If your dad died without a Will, then one of the surviving children or another interested person (even a creditor) could file a petition to the court asking to be appointed to handle the estate. This can be very complicated and also requires public notice. After the notice has run in the newspapers, a hearing before the Probate Court judge determines if your request will be granted.
It appears that your father’s surviving children are the heirs, but we have not discussed children of your deceased brother or several other factors. Your sister-in-law may have alienated heirs and family, but you have inheritance rights under the law.
The probate process is complicated and difficult for lay people. To manage it cost-effectively, objectively, and as quickly as possible, you want an experienced probate lawyer. There are many facts yet to be explored to determine the best course of action in your situation, possibly including estate litigation (a lawsuit) if she did not act lawfully. However, to handle such disputes privately and quickly, your family may want to consider estate mediation, where you can all be heard and a neutral professional mediator helps you negotiate a settlement to which you can all agree.
To your success, Gale Allison
*Originally published in June 2017 in the Gale Allison, PLLC website Asked & Answered blog based on questions from the public. Gale Allison handles estate matters only: Probate, Estate or Trust Administration; Estate Litigation; Estate Planning; Business Succession Planning; and Estate-related Tax Issues at Schaffer Herring, PLLC, in Tulsa, OK. She also mediates Business, Divorce, Estate and Family disputes nationally, exclusively through Dispute Resolution Consultants (DRC-OK).