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Old 07-08-2014, 12:33 PM
 
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My father passed away last month in the state of Wisconsin. He did have a will dated 1990. The lawyer who was one of the witnesses has also passed away. Does this make his will invalid? He only had 2 witnesses on his will and did not have an affidavit page attached.

Last edited by sjune66; 07-08-2014 at 12:36 PM.. Reason: added information
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Old 07-08-2014, 01:07 PM
 
Location: Lakewood OH
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Condolences for your dad.

As long as a will was signed by the witnesses at the time as it was drawn, it should be fine. But even an unwitnessed will is acceptable over no will at all. Those are called "holographic will." The courts will go by the intent of the testator. But your father's is witnessed and signed. If no one is contesting the will, it should hold up in a Probate court. The witnesses who signed shouldn't have to be present.

To be certain of specific state laws of Probate, just go to your state courthouse to the Probate court and they will give you all the answers you need. You don't have to consult an attorney unless there is a problem with the interpretation of the will.
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Old 07-08-2014, 02:48 PM
 
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You should check with your local Surrogate's office, as to the laws of your state.

As an example, in NJ, any will created prior to 1978, when presented to Probate must have at least one witness available to go to probate court and testify that the will was made proper. But witnesses die, move, lose touch. If no witnesses are available, the deceased is considered to have died without a will.

In 1978, the law was changed that wills had to be "self-proving". That meaning, as long as the will was signed and witness signature notorized, it was considered good. No witnesses were needed. Go to probate yourself and you are good.

It is very likely your county's surrogate's office has a web site with all the information you need and what to bring.
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Old 07-08-2014, 03:00 PM
 
Location: SoCal desert
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Quote:
Surrogate's office
Ha. I had to look that one up, never heard it before!
Surrogate Office or Court = Probate Office or Court
Name depends on what state you live in
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Old 07-08-2014, 03:11 PM
 
Location: Lakewood OH
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Quote:
Originally Posted by Gandalara View Post
Ha. I had to look that one up, never heard it before!
Surrogate Office or Court = Probate Office or Court
Name depends on what state you live in
Me neither and I worked in a Probate court for a year. As mentioned, each state has different rules but on the whole, American law is pretty much based on British law and the deceased's intent usually is the rule of the day. Remember Downton Abbey's Mathew's scribbled will leaving his portion of Downton to Mary? Pretty much the same today.

But the will needs to be probated in any case so the OP is going to have to pay a visit to the Probate or Surrogate or whatever they call the Court that handles wills in his or her town.
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Old 07-08-2014, 07:04 PM
 
Location: Florida
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You should be ok but may need a judge to accept the will after a hearing.
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Old 07-10-2014, 05:14 PM
 
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Thank you so much. Unfortunately, That is not what I wanted to hear. I am on the bad side of this, meaning I was left out of his will. I did not want to post my side to get an outside opinion.
I do feel that the place the will is being brought in front of a judge may be judgmental due to the size of the town. One judge for the town. Should a change of venue be in order??? I am not sure how to proceed.....I really appreciate your input.

I am so glad I found this website....I have never gone thru anything like this. My dad lived with a woman for 25 years, in the state of Wisconsin, but never was married to her. Wisconsin Law does not recognize common law marriage. The will was signed 2 days before he was deployed to dessert storm and was a requirement from the military. It was never changed. There is not affidavit page connected to the will since it was not notarized. I have researched and researched....I am at a loss and need outside opinions if I should proceed with contesting the will. I understand this is not legal advise so I will not come back on anyone...lol....I just am not sure what to do.....thank you for all your help, input, and advice......HELP

Last edited by sjune66; 07-10-2014 at 05:22 PM.. Reason: more information
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Old 07-10-2014, 05:25 PM
 
Location: Florida
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I think you would have to prove that your were left out due to the influence of someone and your dad was not competent. If you feel this is the case I think you have to hire an attorney to contest the will. You can probably get a free consultation. You will need someone who knows probate law.
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Old 07-11-2014, 06:39 AM
 
Location: Ponte Vedra Beach FL
14,628 posts, read 17,925,663 times
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Quote:
Originally Posted by sjune66 View Post
My father passed away last month in the state of Wisconsin. He did have a will dated 1990. The lawyer who was one of the witnesses has also passed away. Does this make his will invalid? He only had 2 witnesses on his will and did not have an affidavit page attached.
Here is a brief summary of the law in Wisconsin:

Basic Requirements for a Last Will and Testament in Wisconsin - LawInfo

The fact that a witness is dead is irrelevant. But the absence of a notarized statement to the effect that the witnesses signed in the presence of each other may be relevant - and might perhaps invalidate the will. Also - it is not usual for a lawyer who prepared a will to be a witness - but I don't think it would invalidate the will.

I am a lawyer - but in Florida. And know nothing about the law in Wisconsin (the rules in each state consist of the statutes and the cases that interpret those statutes). I suggest that you contact a lawyer specializing in wills in Wisconsin to get an opinion. An initial consult shouldn't be that expensive (in all probability < $500).

In addition - at least in Florida (and probably other states) - minor children and spouses have certain property rights regardless of what a will says. You're not a spouse - and I don't think you're a minor - but am not sure.

Also - property can be passed outside a will (like if there's a "payable on death" designation on a bank account or a beneficiary designation on a life insurance policy or an IRA). IOW - if your father's primary assets were a bank account payable on death to his SO - and she was the designated beneficiary of an IRA - you would be out of luck whether or not the will is valid. OTOH - people sometimes forget to change these important forms for many years/decades after their circumstances have changed significantly (like after they get divorced). Do you know what assets your late father had? Robyn
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Old 07-11-2014, 10:35 PM
 
Location: Out there somewhere...a traveling man.
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We had our wills notarized as per lawyer and recorded at the county courthouse, $10.00 well spent. Put it in safe place, let someone know.
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