If your father is alive, you cannot sue your stepmother for a copy of his will. If your father has died and your stepmother won't give you a copy of his will, you can write your stepmother a letter formally asking for a copy. If she does not respond, you can start legal proceedings with the probate court in your father's geographic area asking the court to order her to produce the will and submit it to the court. You can then obtain a copy of the will from the court.
A British law, the Larceny Act of 1861, stated that anyone who stole, destroyed or concealed a will during a testator's lifetime or after his death could be sent to jail for a term lasting from two years to life. In that same era, American states began developing laws creating various penalties for executors and heirs who did not produce a will for probate, including losing executorship and other rights under the will.
Current State Laws
Although state probate laws differ from one state to the next, they each have provisions in their statutes that address when a person in possession of a will neglects or refuses to produce the will for the local probate court. In such cases, the probate court can, upon receiving a petition from you, order that person to produce the will or face being sent to jail.
Your first step is to contact the local probate court in your father's geographic area and ask if a copy of his will was filed there before or after his death. If the will was filed with the probate court, ask the court to give you a copy. If no copy of the will has been filed, send your stepmother a polite, signed and dated letter asking her to give you a copy of the will. Keep a copy of the letter for your records. You may wish to send the letter by certified mail to ensure that you have a record of having sent the letter.
Demand to Produce Will
If your stepmother ignores your letter or refuses to send you a copy of the will, you can send her a second legal letter, usually titled "Demand to Produce Will." In the second letter, identify yourself as an heir of your father, state that you have not received a copy of the will as you requested, insist that none of your father's property be sold or given away until the will has been submitted to a probate court, and ask again for a copy of the will. Send the letter by certified mail and keep a copy of the letter for your files.
If you receive no reply to your second letter or your stepmother refuses your request, you can then contact the probate court and petition the court to compel your stepmother to file the will with the court. Petitioning the court to order your stepmother to produce the will starts a civil suit.
Most trust and estate attorneys recommend that you hire a lawyer to conduct the case because probate law is complex. You also need to keep in mind that your state may have a statute of limitations, giving you just a few years in which to file the case, and if you do not start legal proceedings within that time period, you may not be able to compel your stepmother to produce your father's will.
- A Dictionary of Greek and Roman Antiquities: Testamentum
- Encyclopedia Britannica 1911: Will -- Law
- The Criminal Law Consolidation Statutes of the 24 and 25 of Victoria: Larceny Act of 1861
- The American and English Encyclopedia of Law -- Volume 23: Probate
- Delmar Learning: Wills, Trusts, and Estate Administration for the Paralegal
Robin Elizabeth Margolis is a freelance writer in the Washington, D.C., area. She has been writing about health care, science, nutrition, fitness and law since 1988, and served as the editor of a health law newsletter. Margolis holds a bachelor of arts degree in biology, a master's degree in counseling and a paralegal certificate.