October 28th, 2022 in Probate
Your father passed away. In the middle of your grief, you begin to question what comes next. You know he had a will because you remember telling you he had one. You contact various family members and you find your brother has a copy and refuses to provide a copy to you.
Your brother states he is the executor and he is in control. You again ask him for a copy of your father’s will. He again refuses. What can you do?
As an heir at law you are entitled to a copy of the will. It does not matter if you are disinherited or not mentioned in the will. The will should be lodged with the Court within 30 days of your father’s death. It should be lodged in the county which he resided. If he lived in Santa Clara County at the time of his death, the will should be lodged in Santa Clara County. If your father only had a will, there should also be a petition to begin probate filed with the Court as well. Check with the Court’s records to find out if a will has been lodged. If a copy of the will has been lodged with the Court, you can obtain a copy from the Court’s records department.
If you want to enforce your right to see a copy of the will and it has not been lodged with the Court, you will need to file a motion to compel your brother to provide a copy of the will to you. It’s a fairly straightforward hearing and the judge will most likely grant your petition.
Alternatively, you can file a petition with the Court to begin the probate process claiming your father died without a will and you be appointed as administrator of the estate. If your brother has the will and it names his as the executor, it will force him to file his own petition with the Court and serve the beneficiaries of the will and the heirs at law.
Will the judge force your brother to pay for your attorney fees? Probably not. In our legal system, each party pays for their own attorney fees and costs. The advantage of enforcing your right for your brother to provide a copy of the will is you will know the contents of the will. You will also be able to know your rights and what you need to do to enforce your rights to receive your inheritance. Only you can decide if the cost is worth it.
