The validity of a will.....

[EastWest Gal]

Quote:

Originally Posted by Looking4Ward 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.


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[Looking4Ward]

Quote:

Originally Posted by EastWest Gal 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]

Quote:

Originally Posted by Looking4Ward .....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]

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Originally Posted by pb4uski 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]

Quote:

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]

Quote:

Originally Posted by pb4uski 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]

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Originally Posted by pb4uski 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]

Quote:

Originally Posted by EastWest Gal 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.

[Looking4Ward]

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Originally Posted by athena53 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.

Exactly. The mother does have power of attorney, and while the son may have had an attorney help him draw up the will itself, the son may have mistakenly believed that POA would be sufficient to have her sign the fathers name to the will after he read (selected) portions of it to her outside of the fathers presence.

The mother signed the fathers name to a will the father had never seen at the request of the son who composed it. Naw.........

The rest of the siblings are meeting with an estate attorney this week.

[Throwdownmyaceinthehole]

Just a note on Texas as we just redid our wills. Texas now has a Transfer Deed on Death for homes. Form is on line and needs to be filed with county clerk. We have spouse as primary and DD as secondary. It passes outside of the 'will'. We also assigned beneficiaries to all retirement accounts and bank accounts, so the only thing that passes thru the 'will' is our vehicles and household goods/jewelry etc. Of course the beneficiaries can all be changed to the blonde bimbo or pool boy as needed.

[gauss]

Quote:

Originally Posted by Looking4Ward Exactly. The mother does have power of attorney, and while the son may have had an attorney help him draw up the will itself, the son may have mistakenly believed that POA would be sufficient to have her sign the fathers name to the will after he read (selected) portions of it to her outside of the fathers presence. The mother signed the fathers name to a will the father had never seen at the request of the son who composed it. Naw......... The rest of the siblings are meeting with an estate attorney this week.

Even if she had a valid POA in effect, wouldn't she need to sign as herself "POA for FIL"?

She just wouldn't sign his name would she? Seems like the role would be required to avoid confusion with fraud/forgery.

[Brat]

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Originally Posted by Looking4Ward Exactly. The mother does have power of attorney, and while the son may have had an attorney help him draw up the will itself, the son may have mistakenly believed that POA would be sufficient to have her sign the fathers name to the will after he read (selected) portions of it to her outside of the fathers presence. The mother signed the fathers name to a will the father had never seen at the request of the son who composed it. Naw......... The rest of the siblings are meeting with an estate attorney this week.

Frankly I doubt that an attorney drew up this will, or reviewed it as signed.

Before you meet with the estate attorney determine how the deed to the house is registered. Bring that information to the meeting.

[Looking4Ward]

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Originally Posted by Throwdownmyaceinthehole Texas now has a Transfer Deed on Death for homes. Form is on line and needs to be filed with county clerk.

That is extremely helpful - thanks!

[gauss]

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Originally Posted by Brat ... determine how the deed to the house is registered. Bring that information to the meeting.

You should be able to get the from the recorder of deeds office in the county where the property is located.

[Bamaman]

It's time for the mother to go and have a proper will signed, wittnessed and notarized. Hopefully the will has her wishes in it--without input from the youngest son.

If you get down to it, probate is where a judge gives the executor the authority to sign for the estate in the case of transferring and/or liquidating ownership of assets--after taxes and liabilities are paid. Most often, the assets are real estate based as savings accounts and retirement accounts can be excluded from the estate and "beneficiaries" noted on the accounts.

When the first spouse dies, a proper will has a right of survivorship and the real estate is transferred into the surviving spouse's name exclusively. The deed should also have read "with right of survivorship" already.

If someone's very wealthy, the tax man wants to be paid his very large share of the estate within 9 months of the last living person's death--in cash. That's why large farmers and independent business owners need great wills and large life insurance policies.

[Looking4Ward]

Quote:

Originally Posted by Brat Before you meet with the estate attorney determine how the deed to the house is registered. Bring that information to the meeting.

Title to the property and county records do list the father and "et ux" the mother.

[Looking4Ward]

Quote:

Originally Posted by Bamaman It's time for the mother to go and have a proper will signed, wittnessed and notarized. Hopefully the will has her wishes in it--without input from the youngest son. If you get down to it, probate is where a judge gives the executor the authority to sign for the estate in the case of transferring and/or liquidating ownership of assets--after taxes and liabilities are paid. Most often, the assets are real estate based as savings accounts and retirement accounts can be excluded from the estate and "beneficiaries" noted on the accounts. When the first spouse dies, a proper will has a right of survivorship and the real estate is transferred into the surviving spouse's name exclusively. The deed should also have read "with right of survivorship" already. If someone's very wealthy, the tax man wants to be paid his very large share of the estate within 9 months of the last living person's death--in cash. That's why large farmers and independent business owners need great wills and large life insurance policies.

It appears that the majority if not all of their estate is comprised of real estate deeded in both the parents names. The current goal is that the father's half of the community property be passed to the mother regardless of what the phony will states.

She will then own 100% of the estate. Taxes should not be a consideration.

I've also suggested the mother compose and file a Transfer Deed on Death for all of that real estate (as a previous poster suggested) reflecting her wishes. This would trump a will and minimize the potential for any future funny business.

[Texas Proud]

Quote:

Originally Posted by Looking4Ward Title to the property and county records do list the father and "et ux" the mother.

But in Texas that does not mean anything... looking it up ex ux just means 'and wife'...

So your dad can leave his half of the house to anybody, but mom has a legal right to live there as long as she wants...

But, since he did not have a valid will... here is what the web says on who inherits...

a spouse and children who are also the children of your spouse

spouse inherits all of your community property, plus 1/3 of your separate personal property and the right to use your real estate for life children inherit everything else

SOOOO, even without a will, your mother would get the house... now that SHE owns it, she can do whatever she wants.... if she wants to leave it to youngest son, she can... so there is no reason to have this fake will.... unless there is separate property involved....



Intestate Succession in Texas | Nolo.com