A will is a private document until the person who wrote it, called the testator, passes away. After the testator's death, their will is usually filed with the probate court to initiate probate proceedings of settling their estate. Once filed with the court, a will becomes a public record.
Wills and Estate Planning
A will, also known as a last will and testament, is a legal document that takes effect after the testator passes away. It expresses the testator's wishes about how their assets should be distributed among their heirs. The will, along with other important instruments, such as financial and medical powers of attorney, life insurance, living trusts, and advance directives, is an important element of a comprehensive estate plan. Having an estate plan enables the testator to protect their loved ones financially after passing away, to name a guardian for their children, to specify their wishes about end-of-life care, and to identify a trusted individual to administer the terms of their will. The testator can amend or revoke their will at any time up until death, and the document remains private until it is filed with the probate court. Other estate planning documents, such as living trusts and advance directives, are not filed with the court even after death and remain private.
Before the testator passes away, a will does not need to be filed anywhere to be valid. Some people choose to file their wills with the probate court clerk's office for safekeeping, but this step is not required. Some states, such as Maryland and Delaware, have a Register of Wills where a will can be filed before death. Wills filed in these circumstances remain private until probate proceedings begin. If a will transfers title to property, the testator may also elect to file it with the county recorder's office where property deeds are kept. Wills filed with this office become public record when they are filed even though the testator may still be alive.
Wills and the Probate Court
A will typically designates an individual called an executor to administer the testator's estate. The executor files the will with the probate court and petitions the court to initiate the probate process. During this process, the executor, under court supervision, conducts an inventory and appraisal of the estate's assets, notifies the estate's creditors, pays off the estate's debts, and distributes the remaining assets to the will's beneficiaries in accordance with its terms.
Generally, the executor files the will with the probate court in the county where the testator resided or where the testator owned real estate. Once the will has been filed, it is available to be viewed via the court clerk's office. Because state law governs wills, the procedure for gaining access may differ by state. In general, the clerk needs the testator's name and date of death to locate the case file for a particular will. The clerk can usually make a copy of the will for a small copying fee. Older wills may be archived and stored in a different location or preserved on microfilm. In most cases, the clerk's office knows how to locate wills kept elsewhere.
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