Tuesday, September 6, 2011

Resident of Ohio, Vacation Property in Minnesota--Two wills?

Question: I previously executed a will that only disposes of my vacation home in Minnesota. I now wish to execute a will for all my other property. Can I have two separate wills, one for the Minnesota property and another for all my other property?
Answer: When revocable trusts are used to pass on testator's property after death (also known as a living trust), it's not uncommon to create separate living trusts for various parcels of real property owned by the testator. However, separate wills is not standard. Most last will forms (such as the sample last will at MedLawPlus.com) explicitly revoke all prior last wills. I see no reason to have two separate wills under the facts related above. The only fact pattern I have run across where it is common for a testator to have two wills is the situation where he or she lives in the United States but owns real property outside of the United States.

Under the fact pattern given in the question, the typical setup is for the testator to create one will disposing of all property. At death where a decedent who lives in one state but owns real property in another, two probate estates are created: one in Minnesota just for the real property decedent owned in that state and a second estate in Ohio for the remainder of decedent's property. The fact that the will was executed in Ohio (i.e., the decedent's state of residence) according to that state's probate code will not prevent its admission into probate court in Minnesota for disposition of the real property in that state.

Wednesday, August 24, 2011

Probating A Will Executed In Another State

Question: My mom is a resident of North Carolina. She is visiting me in New York. She is not feeling well and is also 96 years old. I have her will from Florida, where she used to live, do I need a new will for North Carolina?
Answer: The requirements for execution of a last will are nearly identical in both Florida and North Carolina as both statutes are based upon the Uniform Probate Code.
Florida: Section 732.502 Execution of wills.--Every will must be in writing and executed as follows:
(1)(a) Testator's signature.--
1. The testator must sign the will at the end; * * *
(b) Witnesses.--The testator's: 1. Signing, * * * must be in the presence of at least two attesting witnesses.
(c) Witnesses' signatures.--The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

North Carolina: Section 31‑3.3. Attested written will.
(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.
* * *
(c) The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
(d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.
A written last will properly attested by two witnesses according to the laws of Florida should generally be valid in North Carolina; however, you would need to take the document to a North Carolina lawyer for a legal opinion. Some states restrict who may serve as a witness to a last will (such as disqualifying beneficiaries) but North Carolina's statute on this point is very broad. See Section 31-8.1.

Another issue is whether a will made self-proving in Florida under that state's law is admissible as such in North Carolina. A self-proving will is one admissible without further evidence and usually signifies that the testator and witnesses' signature on the document are attested under seal by a notary. The generic format for a North Carolina self-proving will is found in Section 31‑11.6. I note that the suggested format in the statute has a blank for the state in which the document was executed before a notary, which leads one to believe North Carolina law envisions last wills executed in other states qualifying as self-proving in North Carolina. Again, a NC lawyer must review the document to give you a legal opinion. What is the consequence if the Florida last will does not qualify as self-proving in North Carolina? An affidavit from one or more of the witnesses to the will's execution must be located and affidavits obtained for probate of the will.