Problems Probating a Will

by Andrine Redsteer
If a will isn't executed in compliance with state laws, problems may arise.

If a will isn't executed in compliance with state laws, problems may arise.

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When a person dies having made a will, it's referred to as dying "testate." Before a testate decedent's estate can be administered in probate court, his will must be admitted. Often, admitting a will to probate goes off without a hitch — the will is accepted as valid and the probate process proceeds. Sometimes, however, problems can arise. Under these unfortunate circumstances, it's generally advisable to consult an experienced estate planning attorney for assistance.

Invalid Will

Although state laws vary slightly, the requirements for making a valid will are generally the same. Most states require a will drafter, or "testator," to be at least 18 years old and cognizant of the significance and impact of executing a will. Moreover, the majority of states require the presence of two witnesses during a will's execution; these witnesses must sign the will, along with the testator. If these requirements, known as "formalities," aren't followed, problems may arise when probating the will. If a probate court finds that the will lacks the formalities mandated by state law, the court may declare it invalid and treat the estate as though the decedent died without a will. In such a case, the decedent's estate is divided among relatives according to state law.

Lost Original Will

Sometimes, a testator gives the original version of his will to a custodian, such as the executor named in the will, for safekeeping. Other times, the testator may keep his original will with other important documents. Generally, probate courts prefer to receive the original will. However, if the original cannot be located and copies are unavailable, probate courts generally presume the testator revoked it by destroying it. This is because states allow testators to destroy wills by tearing them up, burning them or obliterating them in other ways. In Arizona, for example, if an original will cannot be located, but a copy is available, the copy may be accepted, provided a witness can testify as to its authenticity.

Lost Codicil

Codicils are separate documents that amend a will in some way. Although codicils aren't supposed to be used to make numerous changes to a testator's will, these documents can be used to remove a beneficiary, make a new bequest of property or name a new executor. A testator is encouraged to keep his codicil with his will; however, this doesn't always happen. When a codicil is lost, it can create genuine problems when probating a will, as the probate court has no idea what provisions the testator changed. When an original codicil cannot be located, a probate court may require specific procedures that complicate the process.

Will Not Self-Proving

A majority of states recognize self-proving wills. Self-proving wills are wills with an affidavit attached to them signed by the testator, his witnesses and a notary, if applicable. When a will is not self-proving, at least one of the witnesses must testify in probate court verifying its authenticity. When a will is self-proving, witnesses are not required to provide testimony. Problems may arise when a will is not self-proving because it can be difficult to locate witnesses, particularly if the will was executed many years before.