After someone dies, the executor of the deceased’s estate commonly files the last will and testament in probate court. However, while it’s customary, this isn’t the practice of every attorney. A New York attorney is now being sued by an Atlanta woman who claims she’s unable to access her mother’s last will and testament because the attorney won’t release it or file it in probate court.
According to lawdictionary.com, “If the last will has been filed in probate court, getting a copy is as simple as going to the courthouse and requesting a copy or calling and mailing a self-addressed stamped envelope along with necessary payment for the will.”
It hasn’t been so easy for the Atlanta woman, who’s asked to remain anonymous. The plaintiff, who cared for her mother until her death, has been traveling between Atlanta to New York battling with attorney Ellen M. Boyle of Yonkers, New York, and squatters who have now taken over her mother’s New York home.
Rolling out spoke with attorney Leron E. Rogers, a partner at Lewis Brisbois Bisgaard & Smith LLP, whose practice includes complex litigation, business and commercial transaction matters in a variety of fields and industries, primarily in the areas of entertainment, intellectual property, technology and media. Rogers provided insight on the case.
Is the only recourse to go to the court?
Prior to us going to the court I had reached out to Boyle on several occasions via voicemail, phone calls and we actually spoke with her through email and letter. The only response I would get back is that it’s back in her office and that she would let me know and then silence. It’s the deafening silence that just doesn’t make any sense. Before we filed the lawsuit requesting the last will, we reached out once again saying we don’t want to actually file one and that all we want is the will. We still got no response good, bad or the other.
Where did you file a lawsuit?
I made it in the Superior court of Fulton county.
Why did you start out of state?
The harm was here in Georgia. [The plaintiff’s mother] was living here in Atlanta … This is the place where her estate is and will be probated. The harm is here.
Do you have to wait for the court to decide?
[The New York attorney/defendant] was served recently and will have 30 days to file an answer and respond to it officially. Hopefully, we will just get some answers because it’s not like we want to file the lawsuit against her. We want to get the underlining will.
What happens once we reach 31 days?
The attorney has been sued. If she doesn’t file in response to our lawsuit that hasn’t been served on her then we will ask a judge in Atlanta to issue an arrest is she does not respond.
When you receive the will, how can you determine its validity?
That is a bridge we will have to cross once we get it. We generally know what should be in it, but until we get it we will have to deal with that then. The family needs a copy because the attorney only has one which is suppose to be a safe place for it. Unfortunately for whatever reason[New York attorney/defendant] has refused wholeheartedly to cooperate in the slightest and has totally ignored us.
It is just an unfortunate incident that the family has to incur an additional expense because we have an attorney that will not follow the law and is putting us through delayed time and expense in order to do something that is fairly routine.
Three things to remember when trying to secure a person’s last will and testament.
- The only people with a legal right to view the last will before it becomes a matter of public record are those who are mentioned as beneficiaries.
- The executor has the responsibility to determine if the will is actually the last will, and this may take some time.
- If the executor doesn’t respond or refuses to show you the will, you may need to take legal action through the probate courts to force the executor to file the will in probate court so it becomes a matter of public record.
(source: lawdictionary.com)
