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Question:

I am the executor of my mother’s will. I have 4 siblings that are living. When the will was written up my mother signed and the notary had my son and myself sign as witnesses, not knowing that this would cause a problem. Is this will valid? Also do I need to include our deceased sibling who wasn’t named in the will? Can I probate the will without my sibling?

Response:

While the answer depends on state law, the fact that you witnessed the will probably invalidates it because you are an interested party. Your son witnessing the will may be fine if he’s not a beneficiary, but I believe all states require two valid witnesses. If you take the will to the local probate court, they should be able to tell you for sure.

If the will is invalid, then your mother will be deemed to have died “intestate,” which simply means she died without a will.  Every state has rules of “intestacy” stating who will receive the deceased person’s property in the absence of a will. While every state’s rules are different, they all essentially follow the bloodline, passing the estate to the nearest relatives. If your deceased sibling had children they will likely inherit their parent’s share and will have to receive notice of the probate proceeding.

Legal scholars are increasingly questioning both the rules governing the execution of wills and standard rules of intestacy. The complications regarding execution of wills often deters people from doing estate planning and seems out of date when you can simply go on-line to state and, if necessary, update beneficiary designations on retirement plans and investment accounts. As fewer and fewer families are consistent with the Ozzie and Harriet model of the nuclear family, the intestacy rules are less likely than ever to be consistent with what the decedent may have wanted. Further, as in your case, if the house is divided in five or more shares, it’s likely that no one will receive very much, which can interfere with the creation of intergenerational wealth. It also can increase costs, since it’s possible that you’ll have to probate not only your mother’s estate but also that of your deceased sibling. It’s been shown that these rules have contributed to the loss of family homesteads by many Black American families.

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