How do you compel a will? When the decedent leaves a will to an executor, but the executor chooses to not do anything with the will, then many assets cannot be accessed with the production of the will. In that event, many third parties request the executor to produce the will. What happens if they refuse?
If you are a person who receives under the Will, fiduciary, or guardian of the person who receives under the Will, a creditor, any person entitled to letters of Administration, the public administrator, or a party to an action to be brought, then you can Petition to Compel the Production of the Will.
The proceeding begins with a filing of a Petition, and Order to Attend and be Examined and the payment of the a Filing fee of $20. The contents of the Petition should include:
- The relationship of the individual to the Decedent
- The authority of the individual to commence the Petition.
- The information that the individual has to as who has the Will, or, who may have lost or destroyed the Will.
- The attempts that the individual undertook to have the person(s) file the Will with the Court. (Prior to filing the Petition, it may be a good idea to send a letter to the person(s) believed to be in possession of the Will. The letter should ask that the person(s) file the Will with the Court. This letter should set a date by which the Will should be put on file. This letter should then be attached as an Exhibit to the the Petition.)
- All interested parties to the proceeding
- A request that the person(s) in possession of the Will pay attorney fees for the bringing of this petition.
- A request that the person(s) be ordered to file the Will with the Court at the conclusion of any examination which demonstrates they have the Will in their possession.
When you file the Petition, you must go to the Court that has jurisdiction over your decedent, known as the county where the Decedent died. The Court will then review the documents to make sure that all is in the correct form. If so, then the Court will then contact you with a signed Order.
When that is complete, you may then serve the signed Order along with the Petition upon the “respondent” or the person you want to examine. The Order will direct the manner of service and set the deadline by which service must be completed.
On the return date the person was Ordered to appear has to come to court, and the examination can take place in the Court house after the Calendar call. If that person demonstrates that they are in possession of the Will, then they will be Ordered to place that Will on file with the Court immediately.