Q: Can a notarized postnuptial agreement hold in probate when agreement broken prior to death?
Spouse passed away, house will go into probate, no will. Surviving spouse not on title, but notarized post nuptial agreement states house is hers if post nup agreement is not withheld while spouse was still alive. Would the notorized post nuptial be considered a gift and the house not be included in probate?
A:
Dear Los Angeles:
Interesting factual set up. I'd have the post-nuptual agreement reviewed by a probate attorney. Depending on the language, it may be considered a post-nuptual agreement, a contract to make a will, or a will. Or, a combination of the some or all of them. Even if the document is not executed with the formalities of a will, signed and witnessed by two disinterested parties, or a holographic will, it may yet be considered a will if the Decedent intended it to act as such.
However, in any event probate will be required. To skip probate you would need a joint tenancy deed or a trust.
If you don't know where to find an attorney, you can try your local county bar association. Most offer an attorney referral service where, for a small or no fee, you receive a consultation of 30 minutes to an hour. (In my home county, a $35 gets you a 30 minute consultation.)
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