How Can I Get My Share of My Father's Estate From His New Wife?

Full question:

my mother passed away 3 years ago. she had inherited a fairly large estate of accounts and commercial property from her father. she dies and the will that is some 38 years old leaves everything to her spouse. He is 72 years old and is getting remarried. The woman he is marrying is very manipulative and actually was riding by my mothers house before she actually died. He is somewhat questionable regarding his mental awareness(sundowners). He is being very hateful and tauting me, kind of holding my grandfather's money over my head. Many of the accounts have my name or my daughters name on them now but none of the deeds to the commercial property. He has assets and property of his own that wasn't inherited from my mothers father. What should I do? Should I sue for the portion that came from my grandfathers estate? should I just withdraw the assets that have mine and my daughters names on them? Should I have him declaclared incompetent? I have power of attorney now but fear she will have this changed in time. I have also recently found out that while he was taking care of my grandmother that he stole and hid over a million dollars from her. I also have a paper that my mother wrote before she died stating that she wanted my daughters to get her will and for my husband to take care of it. What should I do.He says he is going to get a prenup agreement but hasn't got it yet and the wedding is 2 weeks away I realize this is complicated question and will gladly pay double the normal rate Alabama

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Alabama

Answer:

The answer depends on all the facts and documents involved, such as how the assets are titled. For example, if the assets are held in trust, it may be necessary to file a motion against the trustee. If the assets are held as joint tenants with right of survivorship, they should have automatically transferred to the survivor on the passing of the other joint owner. It is likely too late to contest the will based on statute of limitations or waiver issues. Often, potential heirs sign a release when the estate is probated. If the mother instructed someone to prepare another will but never carried through with signing that will, it probably will be a moot issue. It may be possible to bring an action for breach of fiduciary duty if he was acting as a guardian, agent under power of attorney, or trustee for your mother. To have the stepfather declared incompetent and a guardianship created is a complex process and will depend on a medical evaluation of his mental state.

A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.

A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery. If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you consult with a local attorney who can review all the documents and facts involved.