Wednesday, September 13, 2017

What Happens if My Will Cannot be Located in Time?

I recently read a Nebraska Supreme Court decision, In Re Estate of Gilbert Fuchs, Deceased, 297 Neb. 667 (2017) in which Mr. Fuchs's will wasn't located until quite some time after he passed away. The Court had to decide what to do with this situation, and whether the will could even be probated.

Apparently Mr. Fuchs kept his paperwork in quite a state of disarray, with paperwork in vehicles, in totes, and all over his home. When vehicles would be sold, the buyers would package up all of the paperwork to be returned to Mr. Fuchs's Personal Representative.

The family was pretty sure that Mr. Fuchs had a will, but couldn't locate a copy after contacting local attorneys and the County Court (as Wills can be filed with the County Courts in Nebraska for safekeeping). Ultimately the Personal Representative, Mr. Fuchs's son, found the original will several months after he passed away, and several months after the probate proceedings had begun. This will differed substantially from how the law of intestacy distributed Mr. Fuchs's property. Unfortunately for Mr. Fuchs, and for his intended beneficiaries, the will was located too late. In Nebraska, the Uniform Probate Code requires that probate proceedings be commenced within 3 years of the date of death. Informal probate proceedings alleging that Mr. Fuchs died intestate (without a will) were begun shortly after his death. But a request to probate the will was commenced more than 3 years after his death. This subsequent request was denied as coming too late, and the Supreme Court upheld the lower court's finding.

It's an interesting case, but what does this mean for the rest of us? Well, it means that we need to make sure that our wills and other important paperwork is kept in a secure area, and that our loved ones know where this important paperwork is kept. Because if our loved ones cannot locate our will, then our wishes may not be carried out upon our deaths.

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