My Family Member is Hiding a Will: Legal Implications and Next Steps
by Russell Aldrich | November 15, 2023
When a Family Member is Hiding a Will: Legal Implications and Next Steps
The passing of a loved one is an emotionally charged time for families. As they come to terms with the loss, families also face the legal implications of the deceased’s last wishes. These wishes must be articulated in a will to ensure that the deceased’s assets are distributed according to their desires. But what happens when you suspect a family member is hiding a will?
Understanding the importance of a will
A will is a legal document that articulates a person’s desires regarding the distribution of their property upon death. Without a will, a person’s assets are typically distributed based on state intestacy laws, which may not align with the deceased person’s personal wishes.
In Texas, a will does not have any significance until it is admitted to probate after the death of the person who made it. If a family member hides a will, then it may be more difficult, if not impossible, to have it admitted to probate, and a will which cannot be admitted to probate is the legal equivalent of not having a will at all. In these unfortunate instances, the last wishes of the deceased are disregarded and their property passes to their heirs at law.
Why would someone hide a will?
- Personal gain. Perhaps the most common reason why someone hides a will is financial gain. If the hidden will contains provisions that are disadvantageous to the person hiding it, they might attempt to suppress it in favor of an earlier will which is more beneficial to them.
- Emotional reasons. Personal grudges, family feuds, or disputes might also drive someone to conceal a will.
- Misunderstandings. Sometimes, a family member might misunderstand the content of the will or wrongly believe that it’s invalid, leading them to hide it in favor of what they believe are the deceased’s true intentions.
What are the legal implications of hiding a will?
Texas takes the hiding of a will seriously:
- Interference with estate administration. Tampering with a will interferes with the rightful administration of the estate. It can delay asset distribution and create unnecessary confusion.
- Criminal prosecution. While Texas doesn’t have a specific statute addressing the hiding of a will, someone concealing it may violate laws related to fraud, theft, or other relevant offenses. In particular, the hiding of a will may be used as evidence that a crime is being committed under Section 32.55 of the Texas Penal Code, which prohibits the financial abuse of an elderly individual.
- Civil liability. Apart from criminal charges, a person who hides a will may also be sued by aggrieved beneficiaries for damages.
What do I do of a family member is hiding the will?
- Search for the will. While it might seem obvious, searching high and low for the will is essential. Sometimes, a will isn’t hidden with malicious intent but is merely misplaced. A rigorous search, including safe deposit boxes, home safes, and personal files, may uncover the document.
- Check with the attorney who drafted the will. If you know the attorney who helped draft the will, contact them. They might have a copy or at least provide details about its contents.
- Consult with a probate attorney. It’s crucial to get legal advice from a law firm specializing in probate or estate law to advise you of the appropriate course of action in Texas. Probate law varies widely from state to state.
- Petition the probate court to compel delivery of the will. If you’re certain the will is being hidden, you can petition the court to compel the person in possession of the will to produce it. Section 252.202 of the Texas Estates Code provides that a person believed to be in possession of a will may be compelled to deliver the will to the court for probate.
- Probate a copy of the will. In Texas, if the original will can’t be located, but there’s evidence that it wasn’t intentionally destroyed by the deceased, a court might accept a copy of the will, provided its authenticity can be verified.
- Probate the will as a lost will. Texas allows for the probate of a lost will under limited circumstances if the person seeking probate can provide sufficient evidence as to the will’s validity and contents, as well as a satisfactory explanation as to why the will cannot be found.
While the act of hiding a will is both unethical and often illegal, it unfortunately occurs due to various motivations. Knowing your rights, the legal implications, and appropriate steps to take can help ensure that the deceased’s true wishes are honored. If you’re facing such a situation, seeking the guidance of a competent legal professional is imperative.