One of the most common questions about estate administration and probate is whether there is a law that requires the deceased personís will to be filed with the court. Administration of estates is governed by state laws. Because each state passes its own probate statutes, will filing requirements vary by state.
In most states, a person in possession of a decedentís will must file the will with the probate court in the county in which the deceased person was domiciled. Note: In some jurisdictions there is no separate probate court and the will is filed with the circuit court. The time period for filing the will is usually somewhere in the range of 10 to 30 days after death, but the specific deadline for filing varies from state to state. There are some states in which there is no requirement to file the will. If you are in possession of the will of a person who recently passed, consult a probate lawyer licensed in the state where the decedent was domiciled for information about whether the will must be filed. Also, will filing requirements are often posted on the probate courtís website.
Requirement to File Will Applies to Codicils
When applicable law requires a will to be filed after decedentís death, the requirement also applies to any codicils to such will. If you are in possession of a codicil to the will, you must file the codicil with the court at the same time the will is filed.If you have questions about whether a particular document constitutes a codicil to the decedentís will, consult a probate lawyer.
Hiding or Destroying a Will
Concealing, withholding or destroying a will can subject you to severe penalties, such as fines or incarceration, as well as personal liability for damages. The court could also compel you to produce the will if you fail to do so on your own. For example, if one of the decedent's heirs believes a particular individual has the original will but has withheld it, they may bring legal action which could result in the court ordering such individual to appear and produce the will. See
Will and Trust Disputes.
Filing a Will Does Not Necessarily Mean the Estate Will be Subject to Probate
It is important to distinguish the requirement to file a will from the requirements for probate of an estate. Some jurisdictions require the will to be deposited and kept on file after the testator's death even when no probate is opened. While filing a will is often the first step in initiating the probate process, the act of filing the will does not in itself mean probate will be required. For example, although a person in possession of a deceased personís will may be required to file or deposit it with the court under applicable state law, if the decedent placed all his property in a living trust, no probate would typically be required, despite the filing of the will. Similarly, if the assets in decedentís estate are valued at an amount below the threshold for probate and the estate is not subject to probate due to a small estates exception, formal probate would not be required even though you may still need to file the will to comply with state law. There are many circumstances in which the last will must be deposited with the court, yet no probate is required.The surviving spouse is sometimes reluctant to file the will for a variety of reasons. See required to file will for more on this subject. Adult children, parents, siblings, and other heirs of the deceased person may also have reservations about filing the will, especially if they donít want to be responsible for settling the decedentís estate, paying probate costs, etc.If you have the deceased personís original will but do not want to serve as executor or be involved in administration of the estate, you can still make sure any state law requirements for filing the will are fulfilled. In this situation, you can typically file the will with the court and state that you do not wish to serve as executor. You are not required to serve as executor of a decedent's estate. See for executors. Another option is to take the will to a licensed attorney and ask for the attorney's assistance in complying with state law. In some states, you can also hand the will over to the person named as executor or alternate executor in the will and allow that person to file the will.
Benefits of Filing Decedentís Will
There are many legitimate reasons why a surviving spouse may be reluctant to file the deceased spouseís will with the probate court. One of the most common reasons wills are not properly filed is the surviving spouse or other survivor is overwhelmed with grief and the responsibilities associated with administering the decedentís estate. Even if the spouse is aware of a requirement to file the will, the spouse is often unable to deal with everything that must be done after a loved one dies. This is especially true if the deceased spouse handled the coupleís financial affairs, such as tax returns, bills, investments, etc.
Nevertheless, it is important to understand there are benefits to filing a will with the probate court. Such benefits may include:
1. For those concerned about extinguishing creditor claims against the deceased personís estate, filing the will with the probate court may start the clock ticking on the time period creditors have to file a claim, depending on applicable state law. Failure to file the will could result in creditor claims being brought at a later date than would otherwise have been allowed.
2. To the extent there are greedy heirs that believe the decedent may have left them an inheritance, filing the will is a way to resolve those misconceptions.
3. To prevent the will from being lost. The contents of the will may become important at a later date for reasons not obvious at the time of testator's death. Filing the will ensures there will be a record of its contents. Until the will is filed, keep the will and related estate planning documents in a locked safe, file cabinet or other secure location.
If you need assistance filing a will, a probate lawyer can help you through the process and perform other tasks of estate administration for you. For more information on the laws regarding estate administration and the duties of executors, see books about probate.