Let’s say, for example, that Jason’s father, Scott, recently died. Scott died with $3 million and made Jason the executor of his estate. When Jason was cleaning out Scott’s attic, however, he found clear evidence that Scott had fathered a secret third child during an affair and that Scott wanted to leave that secret third child $1 million.
Now Jason is wondering what to do. Does he have an obligation to follow his father’s wishes and hand over $1 million of the inheritance he and his sister had planned to share?
Jason can’t destroy the evidence
While Jason may be tempted to toss the documents from the safe in the trash, lawyers warn that this is not a good idea.
“The first rule is: don’t destroy or hide anything,” Stefanie DeMario-Germershausen, an attorney who leads the estates and trusts department at Angiuli and Gentile, LLP, told Moneywise. “Whatever is in that safe is potential evidence. Concealing or destroying a testamentary document exposes you to serious civil liability and potentially criminal consequences.”
Since Jason has been named as the executor (or the person in charge of managing the estate and probating the will), Jeffrey Loew, a certified specialist in estate planning and trial attorney at Trust Law Partners, told Moneywise that Jason has “a strict fiduciary duty to manage and distribute the estate legally, honestly, and impartially. This would include determining if this document is a valid legal instrument.”
The newfound sibling may have legal rights
Since Jason must turn over the evidence, the long-lost child may actually be entitled to some estate assets. However, that depends on exactly what Jason found and what other estate planning documents Scott already had in place.
“We initially would focus on two separate questions: Did your father create an enforceable $1 million gift, and does this child have inheritance rights independent of that gift?” Scott Rahn, founding partner at RMO Lawyers, said. “A handwritten document may qualify as a valid will under applicable state law, even if it looks informal. The language, dates, authenticity, format, signature, and relationship to his existing estate plan all matter.”
Patrick Simasko, elder law attorney and financial advisor at Simasko Law, also stressed to Moneywise the importance of reviewing existing estate planning documents, stating that Jason should “first determine whether or not your father had a will or trust. If he did, you will want to figure out if that said child is mentioned in those documents, whether or not they were signed, and exactly what kind of proof and information was found in the safe.”
Simasko explained that the type of document matters a great deal. While a signed will hidden in the attic could have legal significance, “a note, letter, phone, or birth certificate may not change the estate plan.”
