Can the unsigned will be admissible in probate court?

Question

An attorney says he has a copy of a will but the husband and wife never returned it signed. It was written in 2004. December, 2013 the deceased wife dies. Her husband preceded her in death by three years. We can not find a signed will. The married couple has no children together but the husband has grown children from previous marriage. The wife of this married couple raised her sister's kids from ages  6 and 7 due to their mother's death. The wife did not legally adopted them she just became their legal guardian. (they are grown now as well). The wife that just died has brothers and sisters. But the unsigned will states the children she raised get the house and car which are still in both the husband and wife name who are now both deceased. Do the children from the husband heir into the property and car or does the next of kin which is the wife's brothers and sisters heir into the property. Or does the probate judge decides who will be the administrator of the estate? Will the will be admissible and be able to be carried out?

Jayne Sebby · Answer

An unsigned will is not valid.  Without a will, the surviving spouse is usually the primary beneficiary of a deceased spouse although some state do split the estate with any children by birth or adoption.  If there is no surviving spouse, state law will determine who gets what.

Brian Haggerty · Answer

An unsigned will is nothing. If there is no previous will that WAS signed, then husband died intestate; his estate passes half to wife and half to his children. When wife dies (without a will), her estate passes to her heirs at law (probably brothers and sisters). This answer based on facts above and Oregon law.

Dara J. Goldsmith · Answer

Under Nevada law the assets would pass to the wife's siblings as the Will was not signed, thus it is not a valid Will.

Georges Shers · Answer

In all states, for a Will to be valid and binding, the party for whom the Will is made out for must sign the Will. So there is no valid Will and the property will pass by the law of intestacy in the state where the assets are. If the children have not been adopted, in California they would not be heirs. The matter should be filed in Probate Court, where the judge will appoint an administrator [the heirs save a lot of money if one of them is appointed administrator and waives any fees]. The adm. can seek to hire an attorney to be paid on an hourly basis instead of a percentage of the estate. There are books, such as from Nolo Press, that discuss in layperson language how estates and probate operate. Some states, such as California, have community property laws, which determine what assets are part of the estate and what percentage pass automatically to the current wife. You will need a probate attorney to sort out the complications in this  situation, but you, or whomever probates the estate should try to hire one on an hourly basis.

Thomas Edward Gates · Answer

The unsigned Will will not likely be admitted. The sequence of estate distributions depends upon the state they lived in. If in Washington, without a Will, the estate of the first to die would go to the surviving spouse. When this individual dies, again without a Will, the estate would go to the children. If no children, then to their parents.  If the parents are deceased, then to their siblings.  Even though, she raised the sister's children, they do not have standing with regard to the estate.

James Frederick · Answer

I do not see any way this can be handled without the judge deciding. I have heard of a case where an unsigned Will was admitted to probate. This is in the judge's discretion. You will need to consult with (and likely) retain an attorney to make sure that your rights are protected.

Jeffrey Gottlieb · Answer

If there is no signed document then it should not be admitted. If there is a signed document, but it's not original, then there are issues for the judge to decide. From your description, wife's heirs would be her brothers and sisters. Talk to a probate attorney about the process, there are too many variables here to adequately answer in this forum.

Mark T. Peters · Answer

Without a signed will, it sounds like wife's heirs will get everything, which is either her siblings or her nieces and nephews. Somebody needs to talk with a probate attorney and figure it all out.

Norman Green · Answer

Was the property held as joint tenants, community property or separate property?  If either of the first two, it will pass first to the wife and then to her heirs.  If part or all of it was Husband's separation property, then his children will get two-thirds of that, with the rest going to Wife, and, consequently, to her heirs.

Edwin K. Niles · Answer

It is possible to probate a lost will, but there would have to be some proof that the original was signed.

Randall Romei · Answer

If you can prove that a will was signed and lost it is possible to have a copy of a will admitted into probate. The facts you recite do not seem to support this. Without a will the statute on descent and distribution controls the situation. Any property owned jointly by the deceased husband and wife would be the sole property of the surviving joint tenant.  Thus the wife's estate holds all such property. Property owned outright by the husband should have been distributed half to the wife and half divide evenly among the husband's children at the time of his death. Such property could be distributed now if the proper proof of ownership can be established. Since the wife did not have children of her own, born to or adopted by her, her assets would be distributed to her parents, if they are deceased then divided evenly among her siblings, with the descendants of a predeceased sibling dividing the share that would have gone to the predeceased sibling if alive. A probate estate would be opened and one of the heirs of the wife appointed as administrator.

Adam Famulary · Answer

If the will was not executed properly (and it sounds like it was not because it was not signed and witnessed), then the will is not admissible and the intestate statute dictates where the decedent's assets go.  In this situation, the wife would have taken title to any jointly held asset (the house and car) when the husband died.  Any other property would have gone to his wife (50%), and his children (50% in equal shares).  When the wife died, her property (now includes the entire house and the entire car) is also distributed according to the intestate statutes, which would go to her children (if any), but if no children to her parents.  If she has no parents, then her property would go to her siblings in equal shares, or their children by representation (if one or more of the siblings is already deceased).  Her estate may qualify for "small estate proceedings", which is a (cheaper) alternative to probate, but the property would be divided up the

James Maguire · Answer

An unsigned will is completely invalid. Assets would pass under the state laws of intestacy.

Christine James · Answer

No, unsigned wills are not valid wills and cannot be admitted to probate. You will have to probate the estate intestate. The children are the heirs. Any interested person can petition the court for probate. Best to have the person who most people agree on to file the petition.

James Chandler · Answer

Anyone that is related to the deceased would be preferred by the court to be the executor of the estate. But you cannot probate an unsigned will. the assets would go the per Intestate succession.

James Oberholtzer · Answer

No, an unsigned Will is ineffective.  The property will pass by the laws of intestacy to the legal heirs at law.

Victor Waid · Answer

Suggest you obtain the services of a probate lawyer to administer the estate, and an unsigned will,  will not be allowed into the probate proceedings. Assuming the wife succeeded to the deceased husbands share of the estate, the rightful heirs are the wife's next of kin, which would be her sisters and brothers' or their issue if they are deceased.

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Can the unsigned will be admissible in probate court?

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