Probate Case Study

A long-time friend brought her mother’s Will for probate. She was one of seven children that survived their mom. One of those seven, a daughter, had special needs and was dependent on her mother for a place to live and financial support.  There were complicating factors, however, including:

1. The will was a DIY document and was signed in 1989.  It was witnessed and signed before a Notary Public.
2. The will did not have a “self-proving affidavit”; an affidavit attached to or incorporated into the will in which the witnesses and notary join the maker of the will in attesting to the facts that they were in the same room, watched my friend’s mother sign her will, that she declared the document was her Last Will and Testament, and that she appeared to be of age and of sound mind when she executed her Will.
3. Without the affidavit, we had to try to locate a witness or the notary. Two of the three were already dead and the other was nowhere to be found.
4. We therefore had no way to prove her mother’s will.

Fortunately, the six children were determined to carry out their mother’s wishes for her disabled daughter. We were able to prepare an Application for Probate without a will, in which the six healthy children all executed valid legal disclaimers of any interest in their mother’s estate. Instead, they contributed their shares of her property to the creation of a Special Needs Trust we prepared. The Special Needs Trust will fulfill their mother’s wishes by taking over the provision of a place to live and food for their sister. The disabled daughter’s share did go to her, but she allowed her older brother to manage it for her.

This case stands as a cautionary tale for us, even though we successfully navigated the challenges the DIY will presented.

• The probate proceeding, which would have cost about $7,000, instead cost $13,000 when we lost the ability to prove the will was valid.
• If any one of the children had refused to cooperate, that child’s share of their mother’s estate would not have been available to help fund the Special Needs Trust.
• If their sister had objected to the formation of the Special Needs Trust, a probate proceeding to determine her competency would have been necessary, and could have exhausted a substantially larger share of the probate estate.