Full question:
Has Washington state adopted a self-proving affidavit. This is regarding the signing of last will and testmont. Will must be signed in the presence of two witnesses. Does it also require presnece of notary public. Father passed away and he signed will with the presence of two witnesses but did not realize that a notary public should have been there. A signature match I thought could be done with a legal doc. such as drivers lic. What do we do. Left behind property that we already reside on and can not switch title/deedinto our name
- Category: Wills and Estates
- Date:
- State: Washington
Answer:
A will in Washington is not required to be notarized to be valid. It requires the signature of two witnesses and the signature of the testator, who signed it while of sound mind and acting of his own free will. Without having the will notarized, the witnesses may be required to appear in court to testify to the validity of the will.
When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.
Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
The answer will depend in part on whether the estate has been probated, and if not, the owners named on the deed, the value of the estate, and other factors. Property owned as joint tenants with right of survivorship passes automatically to the survivor outside the probate process. In such cases, procedures for transferring the deed to the survivor vary by local recording office. Typically. a copy of the death certificate is required and a fee must be paid. I suggest calling the recorder's office in the county where the property is located to inquire about local requirements.
In Washington, estates not worth more than $100,000 can qualify for a small estate administration. I suggest you contact a local attorney who can review all the facts and documents involved.
Please see the following WA statutes:
RCW 11.12.020 (1) Every will shall be in writing signed by the testator or
by some....
(1) Every will shall be in writing signed by the testator or by some
other person under the testator's direction in the testator's presence,
and shall be attested by two or more competent witnesses, by subscribing
their names to the will, or by signing an affidavit that complies with
RCW 11.20.020(2), while in the presence of the testator and at the
testator's direction or request: PROVIDED, That a last will and
testament, executed in the mode prescribed by the law of the place where
executed or of the testator's domicile, either at the time of the will's
execution or at the time of the testator's death, shall be deemed to be
legally executed, and shall be of the same force and effect as if
executed in the mode prescribed by the laws of this state.
(2) This section shall be applied to all wills, whenever executed,
including those subject to pending probate proceedings.
RCW 11.20.020 (1) Applications for the probate of a will and for
letters....
(1) Applications for the probate of a will and for letters
testamentary, or either, may be made to the judge of the court having
jurisdiction and the court may immediately hear the proofs and either
probate or reject such will as the testimony may justify. Upon such
hearing the court shall make and cause to be entered a formal order,
either establishing and probating such will, or refusing to establish and
probate the same, and such order shall be conclusive except in the event
of a contest of such will as hereinafter provided. All testimony in
support of the will shall be reduced to writing, signed by the
witnesses, and certified by the judge of the court. If the application
for probate of a will does not request the appointment of a personal
representative and the court enters an adjudication of testacy
establishing such will no further administration shall be required except
as commenced pursuant to RCW 11.28.330 or 11.28.340.
(2) In addition to the foregoing procedure for the proof of wills, any or
all of the attesting witnesses to a will may, at the request of the
testator or, after his decease, at the request of the executor or any
person interested under it, make an affidavit before any person authorized
to administer oaths, stating such facts as they would be required to
testify to in court to prove such will, which affidavit may be written on
the will or may be attached to the will or to a photographic copy of the
will. The sworn statement of any witness so taken shall be accepted by the
court as if it had been taken before the court.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
