Asked in Real Estate Law and Probate

Q: is handwritten letter with signature from deceased enough to probate an estate despite deceased brother's siblings?

deceased uncle left niece house with handwritten letter and his signature and witnesses; niece cared for him and kept up with house and property taxes; one brother of deceased uncle failed to sign over house before his death but has siblings which also refuse to sign; can niece probate estate and get deed to house without deceased brother's siblings' signature?

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1 Lawyer Answer
Greg Freeze
Greg Freeze
  • Probate Lawyer
  • Port Townsend, WA

A: Your question didn't get posted under a state. Your answer may vary by state. What's interesting about your description of the "letter" is that it is handwritten. I don't believe there is anything wrong with handwriting a will in the states in which I am licensed to practice law (CA, OR, WA). In fact, I would argue that increases the reliability of the document.

But, since you said that the "letter" had witnesses, you may actually have a will. There are certain formalities involved in what a witness is supposed to be witnessing, but having the witness sign the "letter" might mean that the "letter" is a will. An attorney can usually give you a pretty good guess on whether the court will accept this "letter" as a will.

A will is presumed valid, if the formalities have been followed and it is accompanied by an affidavit by the witnesses as to the will's validity. Again, things vary by state.

Take California as an example. California allows what is called a "holographic" will. This is a writing (e.g., letter perhaps) that purports to give away all one's worldly possessions upon death, and the writing is in the decedent's own handwriting. I'll avoid talking about the exceptions, but I believe that the "letter" was completely handwritten, not some pre-printed document where blanks were filled in. So in a state like California, the "letter" might be a will, even without the witnesses. This would help the "letter" be a will, in certain factual cases where the witnessing formalities and requirements were not properly met. Basically, the "letter" might fail to be a properly witnessed "will" but it still might be considered a "holographic will" because it was handwritten, etc.

Now, if you make a holographic will in California, and move and die in another state, sometimes the will is still considered okay, based on special "foreign will" statutes (e.g., Oregon's ORS 112.255, Washington's RCW 11.12.020).

So, there's a lot to know, just for figuring out if the "letter" is a will. If it is, the niece can probate it. Because of the need one day for title insurance (i,e., a potential buyer one day), a full probate is how one resolves an issue of refuse-to-sign heirs (i.e., those who would "take" if there were now will).

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