The validity of a will.....

[Looking4Ward]

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.

It was at that time the youngest son produced a will for the father that he said he helped his mother compose. Her father had never seen "his" will. Among other things it stated that the home would pass to her mother and upon her mother's death the home would then pass to the youngest son.

The will was signed by her mother (not her father) with the youngest son's spouse as a witness.

The youngest son later had a friend notarize the document without the witness or the mother present.

All of the dates on the document, including the notary, are prior to the date he actually died.

I've suggested that they involve an attorney, because I'm not sure how the youngest son will ever be able to pass that document off as anything other than his own attempt to obtain the home?

[hesperus]

I see trouble brewing... and this heading into probate. In no way can a will that was created by a third party and is not signed (nor even seen) by the decedent be considered valid.

[Sojourner]

I'm no lawyer, but a couple questions come to mind.

1) Did the deceased's wife have power of attorney for him? Was he legally incompetent at the time the supposed will was drafted and signed?

2) Was there no other "last will" document presented or discussed at the family meeting after the funeral? Did anyone ask the widow about a prior version of the will?

[Bestwifeever]

If the father died without a "real" will (if there is no previous will to the document the son created), pretty sure the mother will inherit everything. She can then give it/leave it all to whomever she wants--probably the son who created the faux will.

Sorry for your loss.

[athena53]

Quote:

Originally Posted by Bestwifeever If the father died without a "real" will (if there is no previous will to the document the son created), pretty sure the mother will inherit everything. She can then give it/leave it all to whomever she wants--probably the son who created the faux will. Sorry for your loss.

Most state laws have some provision giving something like 2/3 of the estate to the surviving spouse and 1/3 to the kids if there's no valid will.

I agree that unless the mother had a valid Power of Attorney to sign documents for her husband, that will isn't worth the paper it's written on.

[Sojourner]

One other thought/question:

Is it legally binding for a will to dictate what an heir must do with inherited property after the heir dies? In other words, would the widow be legally obligated to leave the house to the youngest son just because her husband's will says so? (Assuming the will is valid in the first place, which seems dubious.)

Seems to me that once the widow takes ownership of the house, she would be free to leave it to whomever she wants in her own will.

[Sunset]

I'm guessing there is another will lying around somewhere (maybe at a lawyers office) that is different.
Or the State they are in would divide the assets between wife and all children.

[2017ish]

Quote:

Originally Posted by Sojourner One other thought/question: Is it legally binding for a will to dictate what an heir must do with inherited property after the heir dies? In other words, would the widow be legally obligated to leave the house to the youngest son just because her husband's will says so? (Assuming the will is valid in the first place, which seems dubious.) Seems to me that once the widow takes ownership of the house, she would be free to leave it to whomever she wants in her own will.

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.)

Agree with others as to OP. This smells like a dead carp after a long summer day in a mailbox ....

[Texas Proud]

Quote:

Originally Posted by Sojourner One other thought/question: Is it legally binding for a will to dictate what an heir must do with inherited property after the heir dies? In other words, would the widow be legally obligated to leave the house to the youngest son just because her husband's will says so? (Assuming the will is valid in the first place, which seems dubious.) Seems to me that once the widow takes ownership of the house, she would be free to leave it to whomever she wants in her own will.

We have no idea how it is written... it could say wife can live there and after her passing goes to youngest son...


But you are right... if complete ownership is transferred goes to wife then she can do as she wishes....

I did estate taxes when I first was out of college... the thing you had to watch for was the 'blond bimbo'... this was if the wife died first... so, she leaves everything to her DH but says she wants it all to go to her kids after he dies... well, along comes the blond bimbo.... and DH leaves it all to her... the kids are just out of luck... you need to put the assets in a trust if you want to be able to control where they eventually go...

[Looking4Ward]

All good advice and additional questions. Thank you as well for the condolences.

1. The son (and his spouse and 4 children) have been living in the house with the parents for five years.

2. It is unknown at this time if anything giving the mother POA existed at the time she signed the will on his behalf.

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.

5. The other siblings have made it known that they do not accept the will as genuine and feel the youngest son composed it to his benefit, convinced the mother to sign it, and had it notarized thru a friend.

6. I believe the will bequeaths the home to the mother, and then to the son upon the mothers death. I would need to confirm that, though, because it's possible the wording may have been shrewd enough to state that the mother could live there until her death at which time the home would pass to the youngest son and that would appear to be an important distinction.

7. All admit that the father never saw the will but the youngest son insists that his father communicated his wishes to him non-verbally. The father was never legally declared incompetent and was known to be conscious on the date the will was signed by the mother.

I'm afraid it will probably be headed to probate.

[easysurfer]

Quote:

Originally Posted by hesperus I see trouble brewing... and this heading into probate. In no way can a will that was created by a third party and is not signed (nor even seen) by the decedent be considered valid.

+1. Never heard of such a situation created by a third party.

[gauss]

Nothing can be done in terms of transferring title to property until the "will" is presented to the local probate court and a Personal Representative appointed.

There is much in the process about notifying heirs including those who do not inherit. There should be plenty of chance for the others to legally petition the court EARLY in the process before the "will" is accepted. I would speak to an attorney now and share with the "will" if you have it but note that the one that is presented to the court (of which you should receive an official copy) will be the important one.

You may wish to familiarize yourself with the probate court corresponding to the residence of the departed. Many have public web sites that you can see information about live cases as they occur

[gauss]

Quote:

Originally Posted by Looking4Ward I'm afraid it will probably be headed to probate.

No No... Probate is your friend in this. It is designed to protect survivors from the actions of an overzealous take charge sort of individual.

If your MIL had an existing conservatorship or guardianship for your FIL, which are also issued by Probate Courts, then this would also allow her to sign for him. Again there is oversight in these processes designed to protect everyone involved from bad actors.

[gauss]

So is anyone on good terms with the mother besides the youngest son?

If so, it seems like a discussion with her confirming her intention to leave it all to youngest son may be in order.

If she was a joint owner with rights of survivorship on the property, or they live in a community property state and were married then I believe that she would automatically hold sole title to the house upon death of DFIL. This could be confirmed by viewing the deed to the property at your county's register of deeds. This is usually free to do in person or often for a small fee via the Internet.

[Looking4Ward]

Quote:

Originally Posted by gauss So is anyone on good terms with the mother besides the youngest son? If so, it seems like a discussion with her confirming her intention to leave it all to youngest son may be in order. If she was a joint owner with rights of survivorship on the property, or they live in a community property state and were married then I believe that she would automatically hold sole title to the house upon death of DFIL. This could be confirmed by viewing the deed to the property at your county's register of deeds. This is usually free to do in person or often for a small fee via the Internet.

Excellent points, thank you.

Everyone is on good terms with the mother and even the youngest son to some extent. They simply disagree with him that the will is an accurate reflection of their father's wishes. Title to the property and county records do list the father and "et ux" the mother. This state is a community property state and they were married 62 years at the time of his death. So yes, that is a very good point.

The mother has expressed a desire to move to something smaller and my understanding is she avoids answering the question directly when asked if that means putting the house up for sale or if she really wants the youngest son to have it. I think she doesn't want to see any of her children upset.

[Walt34]

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.

[pb4uski]

If the deceased never signed the will, then the will is not worth the paper it is printed on even if it perfectly reflects the deceased's wishes.

The law is very strict and literal on such things IME. If there is no will, then the laws in the deceased's state will determine how the deceased's assets are distributed. YMMV and I am not a lawyer so seek competent counsel, but I think that will be the ultimate result.

It sounds like the house was owned jointly, in which case your MIL now owns it. If it was jointly owned then even if the will was valid whatever it said with respect to the house would have no effect at all.

The legal system is your friend as it will nullify youngest son's obvious ploy to gain ownership of the house once his mother passes.

That said, now that mother owns the house she could have it pass to her youngest son in her will if she wishes.

[Bestwifeever]

OTOH: Have the youngest son and his wife been taking care of the parents for the five years they've lived there and will continue to do so for your mother? That might be worth a house....

[Brat]

Time for Mother to hire her own attorney. She needs a personal advocate to sort this out. If she thinks a lawyer is too expensive then sibs (other than this one son) should pay his/her fee.

[Looking4Ward]

Quote:

Originally Posted by Bestwifeever OTOH: Have the youngest son and his wife been taking care of the parents for the five years they've lived there and will continue to do so for your mother? That might be worth a house....

I think the argument could easily be made that they were taking care of the youngest son and his family