My father passed away last month and had a will. I've been told it's invalid but, it still needs to be filed. What to do?

Asked about 1 year ago - Bellingham, WA

The will was drafted using information obtained online. The will is not notorized but, it was signed by two witnesses -- my mother (my father's living spouse) and my (living) spouse. I'm the only son; I'm named as a significant beneficiary plus, the executor of his estate. We have been told the will is invalid but, that it still needs to be filed with the court. We live in the State of Washington. So, what am I suppose to do now? Do I go ahead and proceed to administer the will or what?

Attorney answers (4)

  1. Justin Eric Elder

    Pro

    Contributor Level 16

    8

    Lawyers agree

    Answered . This is an object lesson in why you don't use online legal documents.

    Without seeing the will, I couldn't tell you for sure if it is valid or not. If it is, in fact, invalid, part or all of your father's estate will have to be administered as if he died without a will.

    I would strongly advise at least taking the will to an attorney to see what, if anything, can be done with the will. The attorney can also advise you on how to proceed from there.

    All the best.

    This posting is for informational purposes only. It is not legal advice, nor does it establish an attorney-client... more
  2. Michael Thomas Smith

    Contributor Level 12

    6

    Lawyers agree

    Answered . There is not enough information to determine the validity of the will from the question. There are some concerns regarding the use of an online resource and not the consultation of a reputable attorney, and the use of family members as witnesses to the will.

    However, there is a document that purports to be a will and that should be filed with the court. I would recommend that you speak with a knowledgeable probate attorney to review the document carefully and then work through the probate process in accordance with the law. Good luck to you.

    The above response is commentary regarding a general legal question. It is not intended to be legal advice... more
  3. Chandra Melissa Lewnau

    Contributor Level 10

    5

    Lawyers agree

    Answered . I'm sorry you're having to deal with this on top of the loss of your father. The best advice is to consult an experienced probate attorney as soon as possible. I've seen a number of wills executed without the assistance of an attorney and almost all of them have made some mistake with the execution. As you are learning, that type of mistake can lead to anything from just added expense to open the probate to the invalidation of the will and the testator's loss of the ability to direct how their property should be distributed. From the information you have provided, the will is not necessarily invalid. Wills in WA do not have to be notarized. The self-proving affidavit can be executed by the witnesses after the fact, or they can testify in court. You are lucky you discovered the problem while the witnesses were still alive and, hopefully, competent to testify. Likely the more serious issue is that one or both witnesses appear to be interested witnesses. An interested witness is someone who would receive a gift under the will. Presumably your mother is an interested witness, and your wife may be as well. An interested witness does not per se make the will invalid under Washington law. See RCW 11.12.160. (I haven't seen this will, there may be other problems that do make it invalid.) The gift to the interested witness is not invalidated, but there is a rebuttable presumption that the person obtained the gift by duress or undue influence. If the interested witness can rebut the presumption, they get the gift. If not, they essentially take no more than what they would be entitled to under the intestacy laws. If you have siblings and the will leaves a significantly disproportionate share to you, you should be prepared for litigation. Whether you decide to probate this will or not, there is a statutory requirement that you as executor file it with the court within forty days of learning of your father's death.

    This answer provides general legal information and should not be construed as legal advice to be applied to any... more
  4. Paul Rutledge Durr III

    Contributor Level 14

    6

    Lawyers agree

    Answered . the Will is not necessarily invalid, just not "self proving." You need to file the will and I recommend that you hire a local probate attorney to assist you with the probate process (let the lawyer file the will too).

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