Do Wills Have to Be Filed?

by Marie Murdock
Probate proceedings may not always be necessary.

Probate proceedings may not always be necessary.

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The purpose of a last will and testament is to leave instructions regarding the distribution of property after death. In order for the court to recognize the distribution, however, the will must be filed for probate. This does not mean that property cannot be distributed without the approval and/or oversight of the court, as there may be several situations in which a personal representative may choose not to probate a will.

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When Title to Property Passes by Survivorship

If the deceased and his spouse owned their home with rights of survivorship in their deed, then his entire share of the real property transfers to his spouse at his death with no action required in probate court, notes the Arizona School of Real Estate and Business. If she wants to sell or mortgage the property, then all that will generally be required by a bank or title company insuring the transaction will be proof of death of her husband. As long as all assets were titled in this fashion so that the entire estate passes to the spouse at death, there may be no need to probate a will.

When Devise Matches State Law

The laws of intestate succession for each state determine what happens to property after death. If the terms of the will match the state laws of descent and distribution or the laws that establish inheritance for your state, it may not be necessary to file or probate the will. However, if there is real estate belonging to the estate that will need to be sold within the first few years after death, it may be advisable to probate the estate anyway, as a title company may be required to issue a title policy that takes exception to issues which may arise due to a recent death with no probate. Also, any documents that require conveyance of legal title will have to be signed by all heirs to your estate, and an affidavit may have to be executed by a disinterested or unrelated party stating the names and ages of all the heirs of the deceased, according to the Fortenberry Law Group.

When Property Is Distributed Prior to Death

You may choose to give away all your property prior to your death so that a will no longer serves any purpose. You may deed your property to your children in advance, keeping only a life estate, or right to live on the property. At your death, this right would terminate. If you have two children, you may set up two joint bank accounts with a child on each account, so that at your death, the money belongs to the child whose name is on the account. Some people even choose to give their personal effects to their children while they are still alive.

When it Is a Small Estate

Some states allow an estate to bypass probate if the estate is under a set amount; the assets in such a case are transferred with the use of a small estates affidavit. Although the procedure may vary from state to state, this method of transferring the assets of the deceased will save the heirs time and money over having to file a full-blown probate proceeding.