When someone passes away, it might not seem that way, but time is of the essence.
Indeed, figuring out if the deceased person left a Will is critical. This is why, if the actual Will cannot be found quickly, having access to a soft copy online, e.g. in liteWill, helps a lot.
Having said that, what happens if the estate has already been distributed to beneficiaries either under an outdated Will or on the assumption that no Will existed (under ‘intestacy rules’) before a more recent Will is found? Is it too late for those beneficiaries named in the newly discovered updated Will to do anything about it and make a claim?
Potential outcomes Claim for negligence
Instances like this are thankfully quite rare.
Unfortunately, hurdles for consideration are quite a few:
The executor under the newly discovered Will start by petitioning a court to revoke the original court order.
Time limits vary by country and by state, but you can expect them to be very long in those matters, that is, up to 30 years.
A new court order will have to be issued to enable the estate to be dealt with under the terms of the more recent Will.
There could be tax consequences where estate-planning measures in the more recent Will had not been carried out.
If the estate has already been distributed, the new executor must consider if they are able to track down assets that were distributed under the outdated will.
The beneficiaries under the outdated Will, though liable to repay any cash they have received, might not be able to do so.
If the beneficiaries under the outdated Will have substantially converted an asset into something else, have destroyed it or have divested their interest in it, the doctrine of ademption may apply, thereby preventing recovery of the asset under the more recent Will.
A claim against the purchaser of an asset bought from a beneficiary under the outdated Will may fail if such a purchase was entered into in good faith.
Claims for recovery of assets and the recovery of legal costs paid under the old administration of the estate may fail if the previous executor can show that they acted in good faith and had no indication that there might have been a more recent Will.
Claim for negligence
Where the estate has been depleted by the previous administration and is unable to recover assets, the executor and beneficiaries of the more recent Will may have claims for negligence against the party who had (whether deliberately or inadvertently) supressed the existence of the more recent Will.
Writing your Will is the very first step, and it’s an important one. But that’s not enough. In the digital age, the next step is to store your Will online. Otherwise, what happens if nobody is able to find your Will in a timely manner? liteWill is the only registration platform that is available globally and that provides the option to store your Will online. ‘A Will that is not online is like a Will that does not exist’.
This portion of the website is for information only. The statements and opinions are the expression of their author, not of liteWill, and have not been evaluated for accuracy, completeness or changes in the law. Information contained in this article is not a substitute for tax or legal advice.
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