Common Probate Problems with Horror Stories

Common Probate Problems with Horror Stories!

By Patricia Louise Nelson of Two Spruce Law

I have often said “use an experienced estate planning attorney” rather than doing an online estate plan or using a general practitioner to prepare your estate plan.  Now I want to talk specifically about why I make that recommendation.  Here are three common issues we run into in our probate practice.

Improperly signed documents

To be a valid Oregon Will, a document must be signed by the person creating it in front of two witnesses. The witnesses need to see the person creating the document sign it and see each other watch that person sign it.  We often are confronted with improperly signed documents.

Sometimes that is due to the documents complying with the laws of the state in which they were signed, but do not meet the requirements for Oregon. This is true, for example, with wills created in California.  California requires two witnesses but does not require them to swear to their witnesses, so the actual signing complied with Oregon law but the documentation does not comply.  This is often a relatively easy fix in that we can locate one of the witnesses and get that person to sign a document that brings the will into compliance with Oregon law.  Of course, hunting down the person and preparing the document for them to sign costs time and money.  But it often can be done.

Sometimes the person creating the will had their signature notarized, but not witnesses.  In that case, the notary can serve as one of the two required witnesses. If another person happened to be present, we can use that second person as the second witness. Again hunting down the people who were present and preparing documents for them to sign to get the document to comply with Oregon law costs time and money.

If the person got their signature notarized but no other person was present, or if a document has only one witness, or if a document has no witnesses, then we may still be able to get in probated in Oregon. Under a fairly new Oregon Statute, we can ask the probate court to accept a non-conforming document, if we proceed with a formal form probate.  A formal form probate means that we request the court to accept the writing, give notice to all people who might be affected by implementing the writing as the will, wait 21 days to see if anyone objects, and then get appointed as the person in charge of the probate.  This process causes delay due to the 21-day waiting period and expense in preparing the special petition to try to get the writing accepted as a will.

Ideally, a will will have two witnesses who provide documentation at the time they witnessed the will so that we can avoid these extra expenses and complications.

Written on documents

As part of our estate plan drafting process, we advise clients to never to write on their documents to try to change them.  Surprisingly frequently in our probate practice, we will face a will or will-like document that is written on.  Sometimes these markings are initials and/or dated. Regardless of whether they are initialed and/or dated, it is a bad idea to write on a will. 

Historically, wills that are written on after they were signed were deemed to be revoked, even if the writing on the will is limited to crossing out one name and writing in another name.  Modernly, these sorts of attempted changes result in being in legal limbo.  Legal limbo is expensive to get out of, expensive financially and emotionally. We will get out of legal limbo one way or another, but let’s avoid it – don’t write on your documents!

Incomplete dispositions

Another issue we occasionally run into in our probate practice is when a document that qualifies as a will (one way or another) says who gets certain assets but fails to say who gets other assets. In these situations, the person who died says who gets certain items but intestate succession laws control who get the assets that are not mentioned or described in the will. 

Sometimes these issues are the result of a mistake, sometimes by an attorney who has a very general practice and dabbles in estate planning.  Sometimes these issues result for assumptions made by the attorney drafting the documents.  Specially these issues can arise in a situation where the person who created the document had limited assets at the time the document was created, say, for example, a house and an IRA.  The person drafting the document assumed that would remain the case.  So the will says “my house goes to my daughter.”  But after the will was signed, the person sold their house. They no longer owned a house when they died.  As a result, the remaining proceeds form the sale of the house go by intestate succession laws rather than to the daughter.