Suing my stepmothers estate

Years before my fathers death in 2016, my father and stepmother had a will made. We were told everything was divided equally between all the kids hers and my dads. About a year after my fathers death, I asked my stepmother when we were going to see dads will. My stepmother told me she threw it out and made a new will. She never filed it in probate, so I have no idea what was in the will. I have found out she has put everything in her kids names. Is it possible to sue her estate after her death, and have a chance to win, or would it be best to take her to court now? I don’t want to take anything from her, but I don’t want her children to get everything my dad worked for. My stepmother did not work, so everything she has was earned by my father. My dad lived in Michigan. Thanks for any advice.

Asked on September 5, 2018 under Estate Planning, South Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Take it to court NOW. You would not be suing about her personal will, which she has a right to make any way she wants (i.e. she could leave everything to her own children, regardless of what she might have previously promised your father), but rather that she may have violated the terms of your father's will, if he left money or belongings to you on his death, or else violated intestate succession (see below). Challenging a will or the distribution of assets is not simple--it is much more complex than, say, a small claims case. If you want to consider a challenge, consult with an attorney; and if it's not enough (to your knowledge) money involved to justify the cost of an attorney, it is not worth taking legal action.
A few points to consider:
1) Married couples often have the same wills or provisions for distribution of their assets, but are NOT required to--your stepmother is entitled to have no will, or to have a different will than your father did. That's why you don't wait until she passes: when she passes, her assets/estate may go to whomever she wants, or else pass by "intestate succession" (the rules for who gets what when there is no will) to her blood and adopted (but not step) family.
2) Your father, like any person, could have changed or voided his will at any time; so it is possible that he chose to throw out the will leaving a share to you. If he did not, if he still had a will leaving you a share on his death, it would have controlled what happened to his estate/assets when he passed. This is what your challenge will be about: using legal processes to find out if he still had a will, what it said, and enforceing it; or if he had no will, getting the share you'd have been entitled to, on his death, under "intestate succession" (or the rules for who gets what when there is no will). In your state, if he had no will when he died, his new wife (your stepmother) should have gotten 1/2, and his children would have split the other 1/2 of what he'd owned.
3) If your father and stepmother had wills saying that when one died, the other got everthing, then when the second one died, it was divided among all children, you are likely out of luck: when he died, everything went to her; then she could go back on her promise to him and change her will to leave everything to her children, or simply give them assets or money now. You need him to either have had no will or a will leaving you things or money *when he died.*


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