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My mother's will states that real-estate 'goes to my children' with no mention of their descendants. In the residuary estate section, it states the Residuary estate goes to my children and their descendants. Initially, probate court told me that I, sole surviving child, would get the real-estate.

Now, 2+ months after probate closed, my deceased brother's (remarried) widow hired a lawyer and now the probate court states her child is entitled to half of the real-estate.

The will also states that if any beneficiary contest any part of the will, that they lose whatever bequests were given in the will.

I am the executor of the will.

My questions:

  1. Since Probate had already closed (12/20), is it legal for the Probate court to, in essence, change the terms of the will? I have several witnesses willing to provide affidavits to the effect that my mother, the deceased, made it clear that I would get the real-estate and that the grandson in question would get nothing.

  2. if I cannot beat this challenge, can I remove myself as beneficiary and have the Probate court declare that all 5 blood-related grandchildren will get equal shares?

  3. Under the original Probate interpretation, when the real-estate sold, I invested the proceeds in the stock market and there have been losses. If the challenge wins, will I have to come up with the delta--since the investment losses occurred under the original interpretation?

Not sure if it has any bearing on the situation, but the grandson in question was in jail at the time of their deaths (mother & father). He had stolen many family heirlooms and pawned them off to pay for his next oxy-fix.

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  • Did you comply with all of the notice requirements (is that the basis on which the original grant was overturned)? – user6726 Mar 5 at 16:26
  • Yes. And I received close-out paperwork from Probate court in Dec 20. I do not know the basis for the overturn. – peinal Mar 5 at 16:30
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Since Probate had already closed (12/20), is it legal for the Probate court to, in essence, change the terms of the will? I have several witnesses willing to provide affidavits to the effect that my mother, the deceased, made it clear that I would get the real-estate and that the grandson in question would get nothing.

Often, for a relatively short period of time after an estate is closed, it can be reopened and the judgment closing the estate can be set aside for good cause. This is also true in most other kinds of lawsuits.

if I cannot beat this challenge, can I remove myself as beneficiary and have the Probate court declare that all 5 blood-related grandchildren will get equal shares?

Removing yourself as a beneficiary is called filing a "disclaimer" in legalese. It means to refuse to accept a gift or inheritance. But you can't do that if you have already received any personal benefit from the estate and there are other statutory restrictions. For tax purposes, the deadline to do is nine months after the date of death, but the state law deadline could be different.

What would happen if you do so depends upon the language of the will. Usually, gifts to a group of people are made "per stirpes" (also called "by representation") which means that if a child predeceases or makes a timely disclaimer that their children share in the share that their parent would have received only. It is possible that it says something different, but that would be by far the most common provision.

Under the original Probate interpretation, when the real-estate sold, I invested the proceeds in the stock market and there have been losses. If the challenge wins, will I have to come up with the delta--since the investment losses occurred under the original interpretation?

If you had the authority to sell the real estate (which you probably did if a third-party title company went through with the transaction), then their claim would almost surely be limited to the proceeds of the real estate and not "the delta" unless the person entitled to take could show that you breached your fiduciary duties in the manner in which you invested the proceeds, for example, by investing all of it in a small number of penny stocks, rather than a diversified portfolio suitable for the purposes of the estate.

Also, there is a question over whether the stock investment was made by you as the executor, and was subject to fiduciary standards, or was instead made after it was distributed to you outright.

Further, there is the question of whether the estate can actually be opened if you gave notice of the closing of the estate to everyone who was entitled to it, including the grandchild, and whether the grandchild was entitled to it.

You really need to hire a WV lawyer who handles probate cases at this point and would be doing yourself great harm by trying to represent yourself. Probate procedures are too arcane for you to reasonably have faith that you are doing it right for yourself.

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  • Would it help to give you the exact redacted text? I have hired a lawyer, but no word back yet. – peinal Mar 5 at 20:20

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