Can probate court be forced to show the Will of someone still alive?

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Can probate court be forced to show the Will of someone still alive?

Mom and dad had joint Will. Mom died we can’t find their Will; dad has dementia. Little sister has conned him into re-doing his Will and making her sole beneficiary. We know the joint Will is irrevocable but can’t find it.

Asked on November 3, 2011 under Estate Planning, Georgia

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss and for your situation here.  I am a little unclear about what you mean by "force" the probate court to show a Will.  Do you mean that the original irrevocable Will was filed with the probate court (and by the way most Wills are not irrevocable; trusts can be irrevocable)?  Or do you mean the Will that your sister had your Father execute, which seems to have been done when he was not of "sound mind" and using "undue influence," which are the challenges that you will make against it?  Any Will that has been offered for probate and filed with the court is a public record and you can view it at any time.  But your Father is not dead so that is going to be difficult.  What you need to do is to go to court and be appointed as your Father's guardian or conservator to protect him.  Once he passes away you can take the steps necessary to make right what may have been done improperly by challenging the new Will and requesting to be appointed as the fiduciary of his estate.  In the meantime, your Mother's Will may or may not have to be probated depending on how the assets were held.  So seek some legal help on that too.  Good luck.

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss and for your situation here.  I am a little unclear about what you mean by "force" the probate court to show a Will.  Do you mean that the original irrevocable Will was filed with the probate court (and by the way most Wills are not irrevocable; trusts can be irrevocable)?  Or do you mean the Will that your sister had your Father execute, which seems to have been done when he was not of "sound mind" and using "undue influence," which are the challenges that you will make against it?  Any Will that has been offered for probate and filed with the court is a public record and you can view it at any time.  But your Father is not dead so that is going to be difficult.  What you need to do is to go to court and be appointed as your Father's guardian or conservator to protect him.  Once he passes away you can take the steps necessary to make right what may have been done improperly by challenging the new Will and requesting to be appointed as the fiduciary of his estate.  In the meantime, your Mother's Will may or may not have to be probated depending on how the assets were held.  So seek some legal help on that too.  Good luck.


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