Do Wills Have to Be Presented to the Court?

by Joseph Scrofano

Estate planning requires consideration of all relevant state laws and statutes. Each state has its own set of laws for probate. Some states have specialized courts that exclusively handle probate, while others have courts of general jurisdiction that handle probate in addition to civil, criminal and family matters. While state laws may differ in the details, probate laws do have some similar general principles.

Choice of Law

A person who drafts a will to dispose of her assets upon death is subject to the jurisdiction of the last place in which she resided. That means the person is subject to the laws of the last state in which she resided, as well as likely subject to the jurisdiction of the court in the last county in which she resided. Different counties may have slightly different rules of procedure, but are all bound by the laws of the state in which they are located.

Drafting a Will

A person who drafts and executes, or signs, a will is called a testator. Usually, a testator has an attorney draft the document pursuant to the testator’s instructions, although this is not typically a requirement. In addition, states have different laws regarding what makes a will valid and legal. These requirements may include having it signed by a set number of witnesses, getting it notarized and the testator being of a certain age. Every state has a law about a testator being competent to draft a will.

Recording a Will

Typically, a person who drafts a will does not have to present his will to the court simply because he drafted it. Virtually no state requires a will to be presented upon its execution. However, some states do require the testator to file the will with the local county recorder’s office. In some places, the will may have to be recorded at the register of deeds or the local county clerk. It's important to check local laws and county rules when doing estate planning.

Presenting a Will to Court

When the testator dies, the executor, sometimes called personal representative, of the will must file the will for probate. Probate is a legal process where the personal representative inventories the estate, pays all debts and transfers property consistent with the instructions in the will. This is usually done with court supervision. In most cases, the first proceeding in probate is where the probate judge verifies the authenticity of the will. To do this, the executor must present the will to the court. However, many states have a type of proceeding for small estate probate that may not require the will to be presented to the court.