Everyone knows that person who says they will get something done, but then they spend years putting that thing off. When the activity being discussed is fixing the outside shutters on the house, then the act of putting it off for years is just a nuisance to the person who wants the shutters fixed. But when a person promises to create a trust and a will but never gets around to it, then that can affect an entire family and an estate.
The laws very on wills from state to state, but in general there are two specific elements a promised will needs to have if it is to have any chance of getting through probate. Keep in mind that the particular probate court you are dealing with may decide to not allow a will that is not in writing no matter what criteria you are able to establish. But if the only will available is a promised will, then it is at least worth a try to get it through probate.
To be even considered in probate, there has to be proof that an offer to take some sort of action after the death of the person in question was accepted by the potential beneficiary. That exchange must be mutual, and it must be witnessed.
If the girlfriend of the deceased tries to maintain that the deceased promised to leave her 80 percent of his estate when he passed away and there was no witness and nothing in writing, then that sort of situation won't work in probate. But if it was done in front of witnesses and the girlfriend accepted those terms, then that may stand as legal.
If two parties agree to a consideration verbally, then that consideration may be able to stand up in court. For example, if two brothers say that they will split an inheritance from their father in case one brother is left out of the will, then both brothers are bound by the verbal consideration.
If one brother does wind up being left out of the inheritance and the other brother tries to deny the agreement, the courts could very well uphold the verbal agreement if both agree in court that it took place. Even if the brother withholding the inheritance does not agree that the agreement took place, the courts could still decide to uphold it.
The biggest problem with a promised trust is that there is no way of knowing if it really is what the deceased wanted to be done after they passed on. Some lawyers argue in probate that there is a good reason why the trust was never put in writing and that is why the trust is not legal. This is why it is important to have a will done as part of your estate planning.
A will is a very powerful tool when it comes to executing an estate. When a person passes away without a will, some family members may come forth and claim that they had a verbal trust with the deceased. Not only does this slow up the process of probate, but it could also mean that the actions taken after the deceased has passed away do not represent their real wishes.
