Cherry Valley, NY Estate Planning Law Firms & Lawyers

Yes, if an estate needs to be opened. Often, it does not. Whether it does in your case depends on whether or not there were assets titled in the father's name alone. This is relatively unusual. If there is a Will, it provides for the order of priority in acting as PR. If there is no Will, then State law does so.

If it is apparent that the named executor lacks capacity or may lack the capacity to perform the duties of the executor, and the testator (the person creating the Will) is still living an has the mental capacity to update a current Will or create a new Will, then it would seem the best way to proceed is for the testator to create a new Will naming another executor. Nowadays, because of software, drafting a new Will is the preferred way rather than using a codicil to modify an existing Will because sometimes codicils are lost. If the testator does not want to update the Will and the named executor lacks capacity, upon the death of the testator, the successor executor named in the Will could offer the Will for probate and inform the court that the named executor lacks the capacity to perform the duties as the executor. If the executor did have some capacity, the executor could renounce the appointment. If there is no successor executor named in the Will, then usually another heir would offer the Will to probate and explain that the executor does not have the capacity. The court may appoint a guardian ad litem to determine if the executor has the capacity although it is unclear the court would do so. It is less likely that a person who has the Power of Attorney for the executor would be named the Executor rather than another heir. So, because of all this uncertainty, it is better for the testator to revise or create a new Will. 

Wills do not need to be notarized in Michigan. Yes, your mother COULD do that. But how does she even know that a Will is the right form to use? About 90% of my clients use estate planning OTHER than a Will. Because most people want to avoid probate. You cannot avoid probate with a Will. The only time a Will is ever used is in probate. What else would she use besides a Will? That is where the office supply or Legal Zoom cannot help you. Your mom needs to review her situation with an attorney to see what she needs and to have it drawn up properly. Could she sign a form and have it turn out? Sure. It could also be a disaster and completely different than what she would have wanted. If there is a problem with a Will, you do not find out about it until after the person has died. Estate planning is not a do-it-yourself project. There are too many potential complications. Estate planning tends to be FAR less expensive than most people assume. Most attorneys do not charge for an initial consultation. At the very least, your mother should do that and figure out what she needs.