When someone dies without a will, the probate courts are left to determine who the departed's solely-owned assets are to be distributed. Certain rules are clearly defined by state law statutes. An example would be a law stipulating a surviving spouse or adult child are the rightful heir for certain assets when no formal will exists. However, what if the departed drew up a document along the lines of an informal will? The court does take informal wills into consideration even if the words were written on a mere napkin.
Validating The Napkin Will
Without a will, the court has to determine how to distribute the assets to the appropriate parties. To help the court reach a proper decision, evidence that indicating the departed's wishes such as handwritten notes could be entered. The concept of a "napkin will" is not as absurd as some might think. The probate court cannot ignore the napkin once it is entered as evidence. Words and directives have been written done. The fact they were written on a napkin is irrelevant.
So, as strange as it sounds, a "napkin will" must be reviewed with the utmost seriousness by a judge. Since a napkin is not, however, an official document created by an attorney the court has to first establish the credibility of the document. The credibility of the improvised will is always factored into the court's decision as to whether or not to consider it admissible and valid.
Litigating in Probate Court
Probate is not going to be a simple process since informal documents are likely going to require a larger burden of proof than a real will. On the official website of Cape May County New Jersey, the FAQ section discusses the legitimacy of a will "written on an envelope" and infers claimants must prove the handwriting on the document actually belongs to the deceased.
A probate attorney would have to call on a handwriting expert to provide necessary testimony. Depending on state laws and the judge's discretion, other evidence may be required before the document is accepting as viable. In certain jurisdictions, the document may have to be signed and dated to be even considered.
There are other things to consider when trying to probate a will written on a napkin. For one, contesting a legitimate will is very difficult. Such might not be the case with an informal one. Anyone hoping to win the litigation requires representation from an attorney who possesses skill and experience in this very specialized area of probate law. For more information, contact a professional like George M Cappello, Lawyer.Share