During a person's lifetime, the only way to discover if he has a will is to ask. The existence of a will becomes public information, however, when the testator dies. The executor files the last will and testament with the court where a probate judge determines the validity of the will and supervises will administration. Probate documents are open to the public for viewing. Once you determine which court probates a deceased person's estate, a look in the court probate file confirms or disproves the existence of a will.
Create an affordable will with LegalZoom
Determine where the deceased testator resided. Generally, the court in the county in which the deceased spent his last years has probate jurisdiction. Call the court clerk's office in that county and ask how to check probate status. Some courts maintain automated phone lines where you input the deceased's name and date of death to learn the probate file number. Others update an Internet site with probate information. Many jurisdictions require you to go to the court itself. If this is the case, obtain the street address of the court and its business hours.
Go to the probate court and find the court clerk's office. Give the clerk the name and date of death of the deceased and request the probate file. The clerk locates the file and allows you to read it at the window or in a separate file-review area. Look for the will among the early filings. The executor's initial filing generally consists of a Petition for Probate, the last will and testament and the death certificate. Confirm that the will testator is the person whose will you seek by comparing date of birth and street address information. Read the will.
Review subsequent documents to ascertain whether the court ruled the will valid. The executor must "prove" the will by establishing proper signing and execution in conformity with state law; all states require at least two adult witnesses. If the court ruled the will invalid -- either because of improper execution or after a will challenge -- the executor probates an earlier will. Locate and review that will later in the probate file. If no earlier will exists, the estate passes to blood kin under the intestate distribution statutes.
Look in other counties if the court clerk does not locate probate under the name of the deceased. "Place of primary residence" is a legal concept, turning largely on a person's intent, and sometimes people manipulate their residence for tax purposes. Determine whether the deceased maintained a residence in another county and check with that county's probate court.
Tips & Warnings
- Probate files, like all court files, are the property of the court system. Do not remove or amend any document in the probate file; doing so can result in stiff civil and criminal penalties. The court clerk's office generally copies file documents for a per-page fee.
References & Resources
- Stockbyte/Stockbyte/Getty Images