Can More Than Two Wills Be Probated?

by Beverly Bird
    When two wills are presented for probate, a judge generally decides between them.

    When two wills are presented for probate, a judge generally decides between them.

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    Very few people intentionally leave two wills. If two separate wills are offered for probate, the court generally tries to recreate through proof the circumstances that led to two wills existing; then it decides which will to accept as valid. Several factors can impact this decision.

    Time Limits

    The statutes in most states include time limits for presenting a will for probate after the death of the testator, or the person who wrote it. In most cases, this time limit is four years. If heirs discover a second will after probate of another will is closed, but within four years after the death of the testator, a court will most likely accept the second will if it is technically valid because it is newer.

    Explicit Revocation

    When a testator makes a second will and states in it that he is revoking an earlier one, the second will is valid and the first is not. When this is the case, it is clear what the testator intended and the court will admit the second will for probate. A court will also usually reopen a probated will that has been closed and settled if an heir produces a second one revoking the first one within legal time limits.

    Ineffective Revocation

    A problematic gray area exists when a testator revokes her will by destroying it. This is legal in most states, but a problem arises when the testator fails to completely tear up or obliterate the first will, called “ineffective revocation.” If an heir finds the partially destroyed will and attempts to enter it into probate after a newer one, the court might possibly probate both wills, depending on their terms. A newer will takes precedence over an older one when just a few bequests are inconsistent between them; a court will usually abide by the changes made in the newer will. If the two wills are totally different, the court will usually rule that the testator intended to revoke the first one, called “implied revocation.”

    Other Considerations

    According to the website TheProbate, when no clear evidence exists regarding which of two wills is valid or most recent, courts will favor those that bequeath assets to immediate relatives rather than distant relatives, and relatives and friends over strangers. When a will is clearly dated, this also gives the court a guideline to determine which will to probate.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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