Mom is gone. Handwritten, unwitnessed will is not valid. Lawyer not responding. Other surprises. Any advice?

I would contact the facility about reissue of the check (asap) If they return the money to you , deposit it to the bank account.

you will need to resolve this some how. Is there a will ? Were you comfortable with the lawyer ? Make an appointment with the lawyer or another .. the estate should pay for it..

My opinion and thought process is , if there is not a valid will
your brothers children have no claim.

Rules about Wills can vary by state and you don't say what state your Mom lived in.

Go online to her county's (or district's) website and search "probate" to find out if it is required. You can probably even call the govt offices and the clerk can tell you.

When I did a search: Minnesota+"when is probate required" here is what came up...

"If your personal property exceeds $75,000 or you own real estate in your name alone, your estate must be probated."

Source: https://www.ag.state.mn.us/consumer/handbooks/probate

The need for probate is triggered not by the presence of a Will but by the amount of assets left in the deceased's name.

Your brothers kids are not legal heirs to anything unless it was specifically written in the will that way. Since there is no legally valid will then you are the sole beneficiary. Of course that doesn't stop them from hiring a lawyer to try and get money.

You may be able to file a form with the DHS in your state if you were the primary care giver for 2 years or more prior to her becoming deceased. I'm so sorry that you are going through this!

Did you think your brother should have gotten 50% of the estate? If so, then I don't see the problem with his children inheriting his 50%. Did your brother help in caring for your mother?

You probably would have liked what my MIL has done with one of her properties -- her 5 children own it, and she has a life estate. If any of her children die, their portion gets split amongst the other sibs -- it does NOT go to that child's heirs. I think THAT is grossly unfair. Not that *I* expect my husband's 1/5 if he were to die, but I think our children most certainly do. My parents had their trust set up so that me and my brothers were equal beneficiaries. If any of us were to die, that sib's portion would go to their children. If they didn't have any children, only then would their portion be split amongst the other sibs.

What exactly is this modest house worth? Is it worth fighting over? What were you going to do with it?

I would think the money in the joint bank accounts is all yours.

Since your mother died essentially intestate, the laws of the state prevail in how her estate is split up.

Here is more detailed info for OP about inheritance in tennesse.

https://www.nolo.com/legal-encyclopedia/intestate-succession-tennessee.html

dear OP,

i’m a lawyer.
the laws regarding wills differ a lot from place to place.

in fact as you said, that lawyer told you, in the state of TN that is the law (children of your brother are heirs). i don’t know TN law.
you’ll have to ask for a second opinion: another TN lawyer.

side-note:
in many countries, that’s indeed the law: no will, then children of a deceased sibling are also heirs. in fact in many countries, even with a will (no matter what the will says), children of a deceased sibling are heirs. in many countries (especially in some european countries), no matter what the will says, siblings (for example you and your brother) must inherit equally.

i’m sure you’ve checked the internet for TN law. you’ll have to keep looking. the best is to contact a 2nd TN lawyer.

if you make mistakes, and your brother’s children contest the way the inheritance was distributed, it can drag on for a long time.

This info may help:

https://www.clearestate.com/en-us/blog/tennessee-intestate-succession#:~:text=If%20someone%20dies%20intestate%20in,then%20passes%20to%20any%20siblings.

Also, what about her "handwritten unwitnessed will"... does it have no legal weight at all in this case? Seems like it should. What reason did the attorney give that this document is not valid?

I’m getting Prince Harry vibes here.

His children deserve his half if he was willed half. You sound extremely greedy, petty, and bitter.

Grow up.

If lawyer does not return your calls, need to call another one. Yes you gave him money but now you need answers.

Regarding a handwritten Will in TN:

"Is a Handwritten Will Legal in Tennessee?

In Tennessee, three types of wills are legal:

- A standard will that was created with the help of an estate attorney
- A nuncupative will, completed while the person’s death is imminent
- A holographic will, also known as a handwritten will

Although the courts will recognize handwritten wills, they must comply with T.C.A. § 32-1-105:

No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.

What the statute means is that a handwritten will is only found valid if the deceased had signed the document and two witnesses can prove that the handwriting is the testator. The will must be entirely written out – if it is typed out, for instance, it will not be valid under Tennessee law."

Source: https://www.mhpslaw.com/practice-areas/estate-planning-attorney-nashville/handwritten-will-issues/#:~:text=What%20the%20statute%20means%20is,be%20valid%20under%20Tennessee%20law.

There is more info at the link regarding "Issues Surrounding Holographic (Handwritten) Wills"

Go to Probate. You become an Administrator. You get a short-certificate to handle Moms estate. No Will, the State determines who inherits. I think in my State you would inherit as the child. Grands don't come into the picture unless the children have died. Not sure if there is a trickle down effect meaning the grands gets ur sbrothers half. Probate should be able to answer that question. If they do, they do.

As frustrating as it is to see a family member who had nothing to do with the deceased inherit 'equally' that is usually what happens. In our will it states pretty clearly that if one of our kids pre-decease us, their children will inherit their share. Unless we DIDN'T want it that way, we'd have to change it.

We do tend to forget that a will is NOT a gift for those who cared for a person.

And sadly, every family has their 'challenges' as far as that goes. My OB stole so much money from my folks they actually lost their home and had no savings to speak of--yet this same OB stood to inherit his 1/6th. He died before mom did and she did have the will changed to exclude his children. Otherwise, his 6th would have been divided amongst his 5 kids.

My BIL, DH's OB stands to inherit 1/3rd of his mom's estate. He has no relationship with her, he can't stand her and has had no relationship with her for many, many years. He's done nothing for her care, BUT MIL wants him to inherit equally. What I/we think is pointless. DH will execute her estate with complete transparency and OB will get his. And likely we will never see him again.

I’m sorry for you loss.

Reading your question and all these answers, it seems like the best idea is to find an available and responsive attorney so you don’t have to wade through this alone.

Cleaning out the personal property is heartbreaking and overwhelming enough… then you won’t have to worry about making legal mistakes that lead to IRS trouble or litigation with family.

The legal process should be fairly straightforward for an attorney and the hourly charges will be worth every penny. You can simply follow the directions and with a legal professional guiding you, if there were any mistakes made, you would just be following professional advice.

I’m sorry you are going through all this, but the end of this trouble is in sight.

You Need a second Opinion . Ask someone for a reference for a reputable lawyer or go on YELP . In the Past Hand written wills were valid . lawyers cost a Lot of Money But In the case you Need one . Wish you the Best .

U need a lawyer

As I understand it, a person who has died cannot inherit, meaning if your brother died before your mom his kids cannot claim his share . It is actually better for you that her will is invalid, you as next of kin are entitled to her estate, and I suspect that is what your lawyer meant by no need for probate, which again is a blessing as probate ties everything up. If you haven't heard from your lawyer why haven't you called him? Get on his case. Or you can go to surrogates court yourself to be appointed administrator of her estate. You can then go to the bank and close out her accounts. You can have her house deed recorded to you. You are the next of kin, you inherit. My aunt died and had no will, my mother had to do this as she was her next of kin, I helped her and we were able to just do what had to be done. As long as the estate is under a certain amount you can do all of this yourself. You are not obligated to give your brother's children anything.

Everything is driven by STATE statutes. I had an uncle who had a handwritten will and it was valid, You need an ESTATE lawyer - not just a regular one. This should all have been handled immediately. I wish you strength also! My greedy cousins went after the Will contesting it. They did NOT care what he wanted at the end, only their greedy pockets. We had nothing to do with anything written in that Will, but only wanted to execute what he wanted as executors. We no longer speak to them and good riddance. Karma will get them in the end for going against a dead person's wishes.

PS> AS administrator/executor, you get a fee about 3-5% of the estate value.

Any legal expenses should come out of the estate not your funds along with unpaid bills etc. before anything is divided. You may qualify for legal aid through your mothers name and estate… not through your own name. Don’t feel rushed to settle even though I know you want to get this behind you. I would hope the 5K check should be able to be reissued. If so ask your bank about possibly setting up a special account in the name of the estate to keep any other money that may come from selling items, etc.

In our state there are specific laws that direct the handling of an estate without a will. It is referred to dying intestate…. dying without a will. An estate attorney for your state should be your best choice. We have one who offered the first consultation free and we paid only if we chose to follow her recommendations. Any attorney can help, but an estate attorney should do it right the first time.

Use what you learn here only to make a list of questions to ask an attorney… not to totally base your decisions.

Attorneys will not talk to you unless you pay them. See if any Attorneys in your state will give a free consultation. You want to search for an Estate Attorney. As far as I know, if there is no will, the property of the decedent passes to the next of kin, which would be you ( not the grandkids ). But you have to check the law in your state. Do you have a County Courthouse? Go there to the Surrogates Court (wills & estate section) and see if anyone will talk to you and answer a few questions. If there was a will and the estate was divided between you and your brother as “tenants in common”, then the grandkids may have a right to his share. But I am not sure. Hope this helps.

Seven months with no communication? You need a new lawyer pronto. After the first few times of not hearing back, that should have prompted you to make a change. That lawyer is not the one for you. As others have noted, each state has different rules regarding the probate process. A competent attorney will be able to guide you through the process relating to your state.

I am son who was a full-time caregiver for my mom. Each year, I would go over important legal documents with her: POA, Health Care Proxy, Will, Funeral Arrangements, Obituary, and Deed, to make sure she was OK with everything. I would then prepare a sheet that both of us signed and dated noting our review. I wanted it for my record in case anyone (including my siblings who were never involved in her care) every questioned my decisions.

When she died last year at age 93, I was prepared. Her funeral wishes were followed. When it came to closing the estate, it was a very simple process that involved my attorney's office filing a death certificate with the County Clerk to confirm ownership of the family home (mom had life use) transferred to me. The paralegal kept me informed of what she was doing by email and phone, and responded to all my questions. I paid an upfront retainer fee that was drawn down as the process moved forward.

Many of the horror stories that occur regarding control over property, bank accounts, estates, funeral arrangements, etc. might be avoided if wishes were discussed and reviewed on a regular basis. Death is certain for all of us. Having one's wishes known before makes it easier for those who survive. I wish you well.

Find another attorney.
Do what you can and then let it go. . . as difficult as this might be.

You do not want to ruin your health due to legalities and how things went in the past. It is easy to realize what we should have / could not done after the fact.

I understand this is not only emotionally difficult, it involves finances and what you feel is unfair (which it might be). Anger will not serve you moving forward. While it will / may be difficult to consider the situation this way 'be grateful for what you do have / will have' and appreciate yourself for what you did for your mom, regardless of how the Will / or lack thereof is divided up. I know this is a tall order / recommendation / advice-support. You want to maintain your well-being as best you can. Being mad, disappointed, upset, angry will not serve you. Although it is understandable.

Gena / Touch Matters

The law of the state where your mother was residing in when she passed will control what happens. If she passed without a will according to that states law, everything generally passes according to state intestacy rules. If she had a will then the executor would generally have to open a probate, pay any debts, and disburse assets to the named beneficiaries. I would talk to a lawyer in that state who does probate.

Tennessee State:
"If an Heir Has Died
Obviously, an heir who has died can't inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it's essential that you do so before distributing assets." https://www.nolo.com/legal-encyclopedia/intestate-succession-tennessee.html

You really need to talk with an estate attorney. Depending on legal fees and the worth of the assets, the brother's heirs may or may not pursue litigation. Litigation is expensive and messy. Discussing your situation with a competent estate attorney now could save you thousands of dollars and lots of headaches.

Ok - first of all get a new lawyer. I am not a lawyer but I am not a door mat either. You likewise are not a door mat - unless you let yourself be one. Don’t let your brother’s kids or your own non-responsive lawyer treat you like one. First, ask yourself whether there is really anything in the estate to merit fighting for. If no - let it go and be satisfied that you did the right thing for your loved one. Go on with your life and don’t look back. If yes, then fight like hell if there is a battle to fight, Understand that many wills/states have a “per stripes” provision which basically means that if an heir such as your brother passed first, then the inheritance he would have received does pass to his heirs unless you mother specifically stated otherwise. In that situation, a will would need to specifically revert the brother’s share of the estate back to another heir, if that was her intention. If your brother had no children, his portion would automatically revert to you. Since he had children, they may be entitled to what he would have received if he was alive. Regardless, it does not affect your portion of the estate that you would have received if your brother was alive. Legally it does not matter if the heirs never visited or even knew who your loved one was. By virtue of their birth by your deceased brother, they may be entitled to proceeds he would have received from the estate. Find a lawyer who is compassionate enough to help you. You must have the ability to pay them. No one works for free.

Check with your Local Area Agency on Aging. Mine provided free consult with a local elder lawyer

The accounts are yours, that the one thing I can say for sure. That's likely why she set it up that way.

I can understand the paralysis, the ... not wanting to deal with any of it. I've been sitting here for 2.5 months still insuring a car in a parking lot etc. Totes full of stuff I don't want to touch. Seven months tho. It's time to find the strength and start going through it all.

See if you have a friend of a friend who is a lawyer who can give some off-record advice or a starting point, or you're going to be paying consultation fees. Settling estates is a bit of work especially without a will.

I'm not sure if it is a default thing or not, but my moms will said those who died before her, their share was then split to the surviving sibling relatives (ie it didnt go down to their children). I don't know though if that is an assumed default in an estate or not. It might vary from state to state.

Find a friend to help give you strength and start going through all of those things in the house etc. Yes it is going to hurt and it is going to suck. That's life all over though. :(

Try and google for bar association with the name of your state where your Mom died. If your Mom had stuff in multiple states, be prepared for a big bill as each state has different laws and potentially taxes.

Each state has an referral service and possibly lawyers who will do some helpful guidance for free.

Getting the correct laws applied to your Mom’s estate will be crucial to moving on with your life, regardless of the outcome. Also remember you might have tax forms to fill out depending upon how she titled her assets at time of death.

See if you have a friend who can support you through this process. There is a lot of emotion tied to the process and the distribution. Good luck on your journey.

seldel: Locate another attorney.