Why the Surviving Spouse May Not Want to File the Will
There are many reasons why the surviving spouse may fail to file the will of a deceased spouse with the probate court. Often, a spouse’s failure to file is due to misconceptions about probate or lack of information about what the law requires. In some cases, the surviving spouse has improper motives. For example, the surviving spouse may want to prevent children of the deceased spouse or other heirs from receiving an
inheritance.
Liability for Not Filing a Will
A surviving spouse should never assume they are not required to file the will after a spouse has died. A surviving spouse should also be aware of the penalties and damages for which he or she may be liable for concealing, withholding or destroying the deceased spouse’s will. If you have questions about state law requirements for filing a will after the death of a loved one, consult a probate lawyer licensed in the state in which decedent was domiciled at the time of death. The attorney can advise on your rights and the obligations of one who is in possession of the will. If you have to delay filing the will for any reason, store it in a locked safe or metal file cabinet to ensure it is not lost or destroyed.
Will Filing Requirements
Will filing requirements vary by state. For detailed information on whether a surviving spouse is required to file the deceased spouse’s will with the probate court, including the consequences of concealing a will, see file will of deceased. For more information, go to estate administration and probate.
Is Surviving Spouse Required to File Deceased Spouse’s Will?
After one spouse dies, questions often arise about whether the surviving spouse is required to file the deceased spouse’s will with the probate court. This is one of the most common questions about estate administration. This article explores the reasons why the surviving spouse often wants to avoid filing the deceased spouse’s will or fails to do so. Information on will filing requirements is also provided.The reasons a surviving spouse may fail to file their deceased spouse’s will with the probate court include:1. The spouse may be concerned about the cost of probate. While many people believe filing a decedent’s will with the court automatically subjects the estate to probate, it does not. Whether an estate is subject to probate is determined by other factors. Some estates are not subject to probate even though the decedent’s will is properly filed with the probate court. A person in possession of a deceased person’s will should never fail to submit it to the court or their attorney because of concerns about probate costs. The fee for depositing or filing the will is typically a nominal amount.2. The spouse may believe filing the will is not required because the decedent had a small estate. While small estates sometimes fall within a small estates exception which allows them to avoid probate or may be subject to less formal estate administration procedures, applicable state law may still require the decedent’s will to be filed with the probate court regardless of the size of the estate. Surviving spouses often believe the will does not need to be filed if he or she inherits all property owned by the decedent. In fact, many states require the last will to be deposited with the court within a certain number of days after the testator's death regardless of how estate property will pass.3. The spouse may want to inherit the intestate share rather than what the deceased spouse left him or her in the will. The surviving spouse may want to conceal the existence of the deceased spouse’s will because the surviving spouse will receive a greater inheritance if the decedent is deemed to have died without a will.4. The surviving spouse may want to make funeral and burial arrangements for the deceased spouse that are different than the last wishes stated in the decedent’s will. To avoid conflict with other family members about the decedent’s last wishes, the surviving spouse may want to keep the contents of the will private.5. The surviving spouse may believe the will does not need to be filed because the couple had a living trust. However, if state law requires anyone in possession of a deceased person’s will to file it with the court or give it to the executor named in the will, that requirement applies irrespective of whether the decedent had a living trust. While the deceased spouse’s estate may not be subject to probate if all his or her property was held in a living trust, state law may still require the decedent’s last will be filed with the probate court.
6. The surviving spouse may be concerned that community property, joint bank accounts, and other marital assets will be tied up or frozen if the will is filed. This is typically not a problem, especially if the surviving spouse is the executor of the will or will take ownership of such property by right of survivorship. However, if this is a concern, the spouse should consult an attorney about the consequences of filing the will in light of probate procedures in that state.7. The surviving spouse may also want to avoid filing the will to protect his or her privacy.
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