What Happens to Your Will After Death

By Belle Wong

What Happens to Your Will After Death

By Belle Wong

Once someone decides to make a will, the focus is typically on designating executors and dividing the estate. In creating your last will and testament, you might wonder what happens to the document after you pass.

Storing a Will

Absolutely nothing happens to a will after the owner's passing—unless the will can be found. To ensure the document is located, it must be kept in a safe place that certain people, including the executor, know about and have access to.

Before making a will, you should talk to your intended executors to be sure they are willing to take on the responsibility and know-how to access the document when needed. Once the will is executed, a copy should be given to the executors.

Most people keep their will at home, along with other important papers, possibly in a safe. If you keep it in a safe, you need to be sure your executors can access it. If the will was prepared by an attorney, the attorney sometimes keeps the original will in addition to a copy for themselves.

One place you should not keep a will is in a bank safe deposit box. Once the bank learns of the death of a safe deposit box holder, the standard practice is to freeze access to the box until someone produces a court order. This can delay probate and the distribution of assets. There is nothing wrong with keeping an extra copy of your will in a safe deposit box, but it is not a good place to keep the original.

Some states allow a will to be filed with the court so that it is readily available when needed. In such cases, usually, a form is filed that provides certain information about a will, including its location. This process is usually done through the probate court, although it has different names in a few states. The advantage of such a probate registry is that it is easy to search to find the will. The law varies by state, but usually, the will cannot be retrieved from the registry until the person dies. Proof of death must be presented with a request to search, and only certain relatives and the executors may search the records.

Wills and Probate

Probate is the legal process by which a court supervises the distribution of an estate when someone dies. If the person has a will, distribution is made according to the will. If there is no will, state probate laws, known as rules of intestacy, determine the distribution.

Once an executor becomes aware that the maker of the will has died, they begin the probate process. The first step is to obtain the original will and file it with the probate court, along with a petition for probate. The judge then signs a document officially giving the executor authority to proceed with settling the estate. The executor's duties include notifying the heirs and creditors of the deceased person, paying any valid debts, and distributing the remaining assets according to the terms of the will. The executor also needs to respond to any challenges to the validity of the will that may arise.

If only a copy of the will can be found, it may still be possible to probate the will. However, this involves filing additional court documents and having an additional hearing to ask the judge to approve using the copy in place of the original. If no will can be found, the estate must be probated according to the rules of intestacy.

Finding a Lost Will

Sometimes, a will is located after the probate process has begun under the rules of intestacy. Other times, a more recent will is discovered after another version has already been admitted to probate. What happens in either situation depends upon whether the probate case is still pending or has been completed.

If the case is still pending, a petition can be filed with the court to admit the newly discovered will and have it probated. If the probate case has been concluded, meaning that all assets have been distributed, the discovery of a lost will can result in a lawsuit against the executors by any parties who received less than they would have under the more recent will.

If You Are a Beneficiary

If you are named in the will of a relative or friend, the executor is required to notify you shortly after the probate case is filed. If there is no will and you are a relative entitled to a share of the estate under the rules of intestacy, the personal representative of the estate will notify you. If you know there is a will and who it designates as the executor, you can also contact that person and ask to see the document.

If your county probate court has a will registry, you can check to see if one has been filed there. Even if there isn't a registry, you should still check with the probate court to see if a probate case has been filed. If one has and there is a will, a copy should be in the probate file.

Other than making a will that appoints a responsible executor and reflects your wishes for the distribution of your property, the most important step you can do is make sure that the document is kept in a safe place that your executor can access when needed.

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.