The validity of a will.....

[Walt34]

The son (and daugher in law) have been unemployed the entire time they've been living in the house. They don't cook. They don't clean. They borrow money from family members and ...

...they're terrified that they're going to actually have to work for a living.

 

[pb4uski]

Sounds like even if he were to gain ownership of the house that he probably would not keep it long and that it would eventually go to tax sale.

 

[Bestwifeever]

I think you win the chicken dinner

The son (and daugher in law) have been unemployed the entire time they've been living in the house. They don't cook. They don't clean. They borrow money from family members and if anything they've cluttered most rooms of the house to the extent it may qualify for an episode of "Buried Alive".

In that case, boot them. No wonder your mother wants to move.

 

[MichaelB]

Recently, DW's father passed away. She comes from a very large family and after the funeral they all sat down to prepare for the inevitable paperwork.

The son (and daugher in law) have been unemployed the entire time they've been living in the house. They don't cook. They don't clean. They borrow money from family members and if anything they've cluttered most rooms of the house to the extent it may qualify for an episode of "Buried Alive".

Sorry for your loss.

This will be a tough situation to deal with, and most likely someone will be disappointed. Before involving all the lawyers, it might make sense for someone to sit down with Mom and help her articulate what she wants. From what you have posted so far, she seems too struggle with that. That's not uncommon, and she may never be able to fully reconcile her views on disposing her estate and helping her children. What matters, though, is not what the siblings want. First and foremost is her welfare - she needs an advocate who takes her side and helps her make sure that her needs are taken care of without regard to the children.

 

[Looking4Ward]

Sorry for your loss.

This will be a tough situation to deal with, and most likely someone will be disappointed. Before involving all the lawyers, it might make sense for someone to sit down with Mom and help her articulate what she wants. From what you have posted so far, she seems too struggle with that. That's not uncommon, and she may never be able to fully reconcile her views on disposing her estate and helping her children. What matters, though, is not what the siblings want. First and foremost is her welfare - she needs an advocate who takes her side and helps her make sure that her needs are taken care of without regard to the children.

Very good advice. Thank you.

 

[ExFlyBoy5]

Yes, this can be done. Textbook method would be "to W for life, remainder to youngest Son." (I don't practice in this area, so my knowledge is not much beyond textbook.)

As long as you remember all the nuances of the rule against perpetuities, you should be good!

This is yet another good example as to why estate planning is not just a good idea, it is a MUST!

 

[Texas Proud]

Okay, some states have some strange laws but absent that, this "will" is trash. Do talk with an estate attorney though, I see this going to probate. That is a good thing. I can't see how any half-competent probate judge would accept this "will" that is a blatant attempt by the son to get the house.

+1 on this.... when I was out I was thinking about this... even IF she had a POA for her husband, I doubt it allowed her to sign a will for him... a POA has to be specific...

I also doubt that many states would even allow a POA for the signature of a will... but, this is just a guess....

 

[HFWR]

Applicable to Texas only, but likely similar in other states...

Texas recognizes two types of written Wills.

An attested Will is the most common type of Last Will and Testament. To be valid, it must be in writing, signed by you, or another person at your direction and in your presence, and attested in your presence by at least two credible witnesses over the age of 14.

A holographic Will is a Will that must be written completely in your own handwriting, and signed by you. There is no requirement that it be signed by any witnesses.

 

[Texas Proud]

Just want to mention that the house does not necessarily go to the spouse...

In Texas, which is a community property state, the dying spouse can leave their half of community property to anybody they wish... even the house that has both spouses name on it... the surviving spouse has a life estate and can live in the house for as long as they wish...

The worst example I have heard about was half a house was owned by 12 children... and all 12 had to sign in order to sell it... along with the surviving spouse...

 

[pb4uski]

Just want to mention that the house does not necessarily go to the spouse...

In Texas, which is a community property state, the dying spouse can leave their half of community property to anybody they wish... even the house that has both spouses name on it... the surviving spouse has a life estate and can live in the house for as long as they wish...

The worst example I have heard about was half a house was owned by 12 children... and all 12 had to sign in order to sell it... along with the surviving spouse...

I always thought Texas was a bit strange... In most state that i am aware of jointly owned property goes to the surviving joint owners.

 

[Brat]

A witness cannot be a beneficiary, at least in OR.

 

[Looking4Ward]

Sounds like this is certainly going to be an interesting situation. I'll update this thread as it progresses.

 

[Sunset]

A witness cannot be a beneficiary, at least in OR.

Same here in IL.

There are 2 issues:

1. The invalid will - probate will settle it and some places require probate when real estate is involved.
2. The alleged free loading son and family - reminds me of an old relative, he wanted to sell his house and move, but he has a son and daughter living there (rent free) who did all sorts of things to block/impede the sale so it took a few years and a super cheap price to finally sell. All so this son and daughter could continue to freeload.

So even after the will is settled, the family drama will continue as the Mother is coerced into staying, or not selling the house even if she moves.

 

[Looking4Ward]

Just want to mention that the house does not necessarily go to the spouse...

In Texas, which is a community property state, the dying spouse can leave their half of community property to anybody they wish... even the house that has both spouses name on it... the surviving spouse has a life estate and can live in the house for as long as they wish...

The worst example I have heard about was half a house was owned by 12 children... and all 12 had to sign in order to sell it... along with the surviving spouse...

That's interesting. Assuming that was the case, can the surviving spouse then will their half of the property to someone else? I think in this case the wording was that she could live in it and upon her death it would pass completely to the son. I don't think it even provided for her possible decision to sell the home. But I'll check on all that as well as who it named as executor.

As nefarious as this situation sounds, perhaps it could be legit. The youngest son assured all of his siblings that he had a lawyer look it over and everything is correct. I just have a hard time believing that a probate court would accept a will that wasn't signed by the deceased in which the two witnesses (both youngest son and his wife) are both beneficiaries of a major asset.

 

[easysurfer]

That's interesting. Assuming that was the case, can the surviving spouse then will their half of the property to someone else? I think in this case the wording was that she could live in it and upon her death it would pass completely to the son. I don't think it even provided for her possible decision to sell the home. But I'll check on all that as well as who it named as executor.

As nefarious as this situation sounds, perhaps it could be legit. The youngest son assured all of his siblings that he had a lawyer look it over and everything is correct. I just have a hard time believing that a probate court would accept a will that wasn't signed by the deceased in which the two witnesses (both youngest son and his wife) are both beneficiaries of a major asset.

Be careful what you wish for. If/when you discover that the freeloading son's version of the will is not legit, the rest of the family may want to name you as executor to straighten up the mess. Of course, unless you don't mind serving in that capacity.

 

[EastWest Gal]

That's interesting. Assuming that was the case, can the surviving spouse then will their half of the property to someone else? I think in this case the wording was that she could live in it and upon her death it would pass completely to the son. I don't think it even provided for her possible decision to sell the home. But I'll check on all that as well as who it named as executor.

As nefarious as this situation sounds, perhaps it could be legit. The youngest son assured all of his siblings that he had a lawyer look it over and everything is correct. I just have a hard time believing that a probate court would accept a will that wasn't signed by the deceased in which the two witnesses (both youngest son and his wife) are both beneficiaries of a major asset.

Can't be legit. No one can sign a will for someone else. If someone is incapacitated before they write or sign the will, too bad. The testator must sign or at least mark the will with appropriate witnesses. And beneficiaries cannot be the witnesses.

A lawyer can review a document, but that does not make the document valid if inappropriately signed.

Gee, maybe I can write and sign Warren Buffett's will giving me his estate and have my husband witness it, then get it notarized by a friend. Hmm...I don't think the court will fall for this. Or for the scenario you presented.

There are three things wrong here and some may be criminal. 1. Not properly signed. 2. Not properly witnessed. Not properly notarized.

DW or one of her other siblings need to be willing and capable of volunteering for Executor. It won't be the one trying to get the house.

Since the will can't be valid, either there is another will out there or there is no legitimate will. State laws governing distribution of the estate of someone who dies intestate will be applicable in that case.


Sent from my iPhone using Early Retirement Forum

 

[Looking4Ward]

Can't be legit. No one can sign a will for someone else. If someone is incapacitated before they write or sign the will, too bad. The testator must sign or at least mark the will with appropriate witnesses. And beneficiaries cannot be the witnesses.

I was just told that the mother signed the father's name to the will. It was not done at the direction of the father nor in his presence, it was done at the request of the son after he read (selected portions) of the will to her. One of the "witnesses" is an individual no one has ever heard of who was not present nor seen in the home on the date they signed the document.

Two executors are named in the document, the youngest and the oldest son.

The oldest son had no idea this document existed, sides with the rest of the family in the belief it's bogus, and will be the one who files it along with the objections with the probate court.

Yeah, I'm thinking this is going to be a no brainer.

 

[pb4uski]

.....The youngest son assured all of his siblings that he had a lawyer look it over and everything is correct. I just have a hard time believing that a probate court would accept a will that wasn't signed by the deceased in which the two witnesses (both youngest son and his wife) are both beneficiaries of a major asset.

Youngest son is in for a rude awakening. No probate court judge is going to accept that will since it was not signed by the decedent. Youngest son is blowing smoke (or smoking something else) and dancing on committing fraud. My prediction: the probate court judge will hand youngest son his head if he persists in trying to get that "will" entered.

 

[harley]

Youngest son is in for a rude awakening. No probate court judge is going to accept that will since it was not signed by the decedent. Youngest son is blowing smoke (or smoking something else) and dancing on committing fraud. My prediction: the probate court judge will hand youngest son his head if he persists in trying to get that "will" entered.

I don't understand why people always say someone must be smoking something when they do something stupid. I've been smoking something for 45 years, and almost every really stupid thing I ever did involved alcohol. I think we need to change the saying "he must have been drunk". Just sayin'.

 

[growing_older]

3. In this state in the absence of a valid will half of the estate goes to the surviving spouse and half is distributed among children of the deceased if any.

4. This is the only "will" to be known in existence.

This will is going no where as soon as anyone protests. Make sure the youngest son doesn't start taking possession of money or items with the bogus claim it is going to him anyway. You need to get a lawyer and get this under a court's supervision as soon as possible.

At the very least this is a completely invalid will and useless. It seems more likely to be fraud and you may have to decide how much you want to press criminal charges on a sibling. Also, maybe mom needs some help getting the deadbeats out of her house.

 

[Mulligan]

Youngest son is in for a rude awakening. No probate court judge is going to accept that will since it was not signed by the decedent. Youngest son is blowing smoke (or smoking something else) and dancing on committing fraud. My prediction: the probate court judge will hand youngest son his head if he persists in trying to get that "will" entered.

His head should become a punching bag back behind the house until "the truth" is extracted from him!

 

[Texas Proud]

I always thought Texas was a bit strange... In most state that i am aware of jointly owned property goes to the surviving joint owners.

It is technically not 'joint' owned in the sense you are thinking (with right of survivor).... it is community property where both spouses own half... so, they jointly own the property, but it does not pass to the other upon death...

I guess you can put it down as joint with right of survivor, or where it goes to the other spouse on death...



Heck, I would not want joint property to go to the other joint owner... what if I own half a house with a friend... I still want to say who gets my half...

 

[38Chevy454]

Seems like a complete clusterf**k to me, instigated by youngest son. There does not seem any way that supposed will is valid legally. The loser youngest son is showing his true colors, the rest of the siblings best wake up quick. The good thing is that state laws are actually in place to prevent this bogus will from being executed.

 

[gauss]

I just went to a 2 hour talk given by our local Probate Registrar (in a large wealthy county in our state).

Apparently if there have been shenanigans in the past, the Probate court is a venue to possibly right prior wrongs. I already knew that you could petition to reopen a Probate even if you were not the original Personal Representative, but what I learned is that you can do this even if there are no funds in the Probate Estate (ie all property has transferred outside of Probate - ie Trust - Beneficiary and even Joint Owner (wros)on bank accounts/real estate).

They are often able to reverse the case where the last one who was close to the departed arranged to have their name added to a bank account/house etc "for convenience" despite a will indicating all property should be split. I had no idea that the Probate courts would take up cases like this.

Again -- I feel Probate is not something to be avoided/feared because it is a process designed to keep everyone honest transparent and accountable.

 

[athena53]

Can't be legit. No one can sign a will for someone else. If someone is incapacitated before they write or sign the will, too bad. The testator must sign or at least mark the will with appropriate witnesses. And beneficiaries cannot be the witnesses.

A lawyer can review a document, but that does not make the document valid if inappropriately signed.

Yeah, I'd forgotten that part about being "of sound mind". It doesn't actually need to be in the wording of the will, but the witnesses must testify that the testator (the person who write the will) actually signed or marked it and that they intended for it to be their last will and testament. The times I've signed a will in an attorney's office, he's had me acknowledge in front of the witnesses that this is my will.

If FIL was mentally incapacitated he wasn't capable of making a will and no one could do it for him. I would suppose (I'm not a lawyer) that if he was physically incapacitated and couldn't even mark an X on the will in front of witnesses and acknowledge that it was his will, it wouldn't be valid, either.