Do Wills Need to Be Filed with a Court?

By Stephanie Kurose, J.D.

Do Wills Need to Be Filed with a Court?

By Stephanie Kurose, J.D.

Before anyone can inherit any of a deceased individual's assets, the person making a will (the testator) or the person charged with settling the deceased individual's estate (the executor) must file the will with the correct probate court. If the testator files the paperwork before they die, the probate court keeps it until the testator's death. After the testator dies, the executor, who is responsible for identifying, collecting, and distributing the assets of the estate, must find the document and file it. Once the testator dies and someone has filed the will, the probate process can begin. During this process, the court oversees the administration and distribution of the estate.

Gavel and glasses next to last will and testament

Filing a Will During the Testator's Lifetime

There is no requirement to file your will with a court during your lifetime. In fact, many people simply keep the document in a safe place and do not file it while they are still alive. However, if you choose to file the paperwork prior to your death, the probate court stores it for safekeeping. It remains a private document until you die, and then it becomes a matter of public record. Courts that allow you to file your will before you die may ask you to leave a list of people permitted to pick up the document from the court after your death. If no one picks it up, the court may initiate the probate process on its own after it receives notification of your death.

One of the benefits of filing your will before you die is that it could speed up the initiation of the probate process. When the testator files this document with the court, they receive a docket number in advance. The executor can then simply notify the court of the testator's death to begin the probate process.

Filing a Will After the Testator Dies

In the majority of cases, a surviving family member or close friend files a person's will after that person dies. Until someone files the document, the executor cannot distribute assets to any heirs or beneficiaries. The probate court ensures the document is valid and oversees its distribution.

Depending on the complexity of the estate, the probate process can take several months. States typically have expedited probate processes for smaller estates with assets under a certain value.

Filing Other Required Forms

There are a few different forms that the executor must file with the will. One of the most common additional filings is the petition to open probate. This essentially asks the court the begin the probate process. The proceedings might also require the filing of a petition for letters testamentary. This petition gives the executor power to perform all of the functions required to probate the deceased individual's estate.

Although a state's laws might not technically require the filing of a will, the probate process cannot begin—and thus any heirs or beneficiaries cannot inherit any of the deceased individual's assets—until someone submits the document to the probate court.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.