Q: We lost our last parent earlier this year and he had an old will leaving everything to one child. But there are four of us.
The will gives the one child everything, but the will has notations on it and changes relating to my father’s assets. The court will not tell us if we can probate the will. The changes in the margin do not look like they are my father’s handwriting. My father had a new will made with a lawyer out of the county dividing everything in equal shares. Which is our best option? To try to probate the first one will or the second?
A: I’m sorry for your loss. If the second will was properly drafted, that will should have contained a clause stating that all prior wills would have been revoked and that the only will that would be in force at the time of your dad’s death would be the second will.
Generally, you can imagine a person writing a will early in a marriage. Later, once the couple has kids, they might write another will, and make changes to it later in life and then maybe again at an even later stage of life when there are grandchildren.
Imagine finding each of those wills together at the same time. Was the first will drafted early in your father’s life when only the one son mentioned in the will was alive? Later, when there were more children, did your father decide that the fairest thing to do was to divide all of his assets among all of the kids?
Your situation is probably closer to this example. The notations on the margin may indicate changes made with an attorney or by someone suggesting changes to the original will. Eventually those changes might have been incorporated into a final will.
There are times that attorneys will draft amendments to wills and others where an entirely new will is drafted. It seems that your father decided to get a new will made and that his final wishes are described in that second will.
Any estate attorney can probably look at the two wills and tell you with near certainty whether the first will is still valid or whether the second will supersede the first will and you now have to use the second will.
One final note: generally, wills drafted and signed in any part of a state are valid in that state. So it shouldn’t matter if your father went to an attorney outside of the county in which you are located. There may be issues if your father went to a different state to execute a will, but courts will generally honor the intentions of the person who executed the will so long as the will is validly signed, properly prepared and property witnessed in accordance with the laws of the state in which the will was drafted and signed.
But for more information relating to the specifics of the will, you should talk to an estate attorney in your area. Keep in mind that if you don’t connect with an attorney, you should seek out an attorney that you feel meets your needs and will work with you and answer your questions.
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