Question: When my mother passed away in 2021, we began the process of probating her Will. However, my understanding was that the probate judge and paralegals could not probate the Will because they could not locate the law firm where she created it.
I have all the important paperwork, sealed and dated Wills for my mother and father, and the old address of the law firm. We ultimately didn’t have to probate my mother’s Will, and it worked out fine; however, I’m now worried about my dad’s Will. Can they not probate it if they don’t find the lawyer or firm? I just want to know in advance because I have a relative who may cause problems if there isn’t a valid Will in place.
Loraine’s Answer: Assuming that your mother had her principal residence in Georgia and this is a Georgia probate court you’re dealing with, the identity of the law firm that helped prepare a Will is not important in determining whether the Will can be admitted to probate or not. You don’t have to even have an attorney prepare a Will for you for the Will to be valid and admissible to probate (although I recommend doing so for other reasons).
What DOES matter in getting a Will probated, however, is whether it is valid (an invalid Will cannot be admitted to probate). Determining whether a Will is valid has certain requirements. One of those is proving that the Will was executed correctly in accordance with the requirements of Georgia law. Part of proving whether a Will was executed correctly involves getting testimony to that effect from at least one of the witnesses to the Will. If the Will is a complete, original Will, and not a partial document or a copy of an original, and if the original Will is accompanied by a document called a self-proving affidavit (usually, but not necessarily, executed at the same time the original Will is executed), then the probate court generally has enough evidence to assume that it was validly executed. However, if the Will is contested, if it is a copy, if it is not complete, or if there is no self-proving affidavit, then additional evidence of its correct execution can be required.
That’s where the identity of the preparer of the Will and the witnesses can become important. If the Will appears to have been prepared by a law firm, then it’s often the case that the attorney and other employees of the law firm were the witnesses to the Will (and often the notary, if there is a self-proving affidavit, which is the only place a notary should generally appear on a Will). If there is not a self-proving affidavit, or if someone challenges the Will, then an affidavit from at least one witness is required (this affidavit is done on a special probate court form called an Interrogatories to Witness to Will).
If you can’t tell who the witnesses are because the signatures are not legible, or if a complete address for each witness is not provided on the Will, or both, and if an Interrogatories to Witness to Will is needed, then sometimes you end up checking with the law firm that prepared the Will to get help finding a witness. If you can’t tell what firm it was, or if the firm has merged or closed and you can’t get in touch with anyone from it for help finding the witnesses, then you can end up having to use a different procedure to try to prove that the signature of the person who the Will belongs to is actually that person’s signature. You will also have to provide the court with evidence that you did a diligent search for the witnesses and document each step you took to try to locate them. This usually includes providing information about how you went about trying to find the attorney/firm that helped prepare it as well as information about the steps you took to try to find at least one of the witnesses who signed the Will.
There could be some other reason that the probate court in your mother’s case mentioned the attorney who prepared the Will, but I believe that it’s most likely that there was no self-proving affidavit and they needed you to provide an Interrogatories. Having had an experienced probate attorney working with you might have helped reduce the confusion and smooth the process of having your mother’s Will admitted to probate.
As for your father: If your mother’s Will did not have a self-proving affidavit, so that you needed an Interrogatories to Witness to Will, and if your father’s Will was prepared by the same law firm and at the same time, then the best way to address this may be for your father to update his estate planning. If your father is no longer willing or able to update his own estate planning and ensure that he has a self-proving affidavit (or, maybe even better if there is a relative who could cause problems during a probate, a fully-funded revocable trust in addition to an updated Will), then you may eventually need to use the alternative process to prove his Will. Under the alternative process, if no witness to a Will can be found to provide an Interrogatories and the Will has no self-proving affidavit, two disinterested parties who knew the testator have to review the Will and then sign affidavits stating how long they knew the testator and that they have reviewed the Will and believe it to have actually been signed by the testator.
My advice is to always have an experienced probate attorney help with a probate effort. While you don’t have to have an attorney help you with probate under Georgia law, probate is not a good do-it-yourself project. There are simply too many complications.
Key Estate Planning Takeaway: There is more than one way to prove that a Will is valid, but it isn’t always easy. Hiring a probate attorney to help offer a Will for probate isn’t mandatory, but doing so can be helpful, especially in a trickier situation, such as where a Will does not have a self-proving affidavit.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
