Where to Record a Last Will and Testament

By Tom Speranza, J.D.

Where to Record a Last Will and Testament

By Tom Speranza, J.D.

With a last will and testament, an individual, called the testator, documents their instructions on how to handle their assets and debts after their death. The testator names someone in the will as the executor, known as the personal representative in some states, to take the various actions required by law and under the will to:

  • File the will in court
  • Inventory the testator's assets
  • Pay the testator's funeral expenses and other debts and taxes, including monthly bills such as mortgage payments and utilities
  • Distribute the remaining assets to the heirs named in the will
  • File a financial accounting of the testator's actions

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Recording the Will

Each state has a legal procedure called probate that validates a will and officially appoints the executor to manage the testator's estate. Although each state has slightly different probate procedures and forms, the basic rules are usually similar:

  1. The probate court in the county where the testator maintained a permanent residence at the time of death probates the will.
  2. The executor files with the county court that has jurisdiction over wills and estates:
    • The original will (a paper document with ink signatures and notary stamps—not a photocopy or electronic version)
    • The testator's death certificate

The names of such courts differ by state. For example, California probates wills in the Superior Court of each county, New York uses county Surrogates' Courts, Texas has county Probate Courts, and Pennsylvania wills go through probate in the Orphans' Court division of the county Courts of Common Pleas.

  1. The executor makes the filing in person at the court clerk's office (sometimes called the Register of Wills), and the clerk requires the executor to complete and sign specific intake forms.
  2. If third parties witnessed the will's signing but a notary was not present, some states require those witnesses to accompany the executor at the court to sign affidavits attesting to the will's authenticity.
  3. For smaller estates under a certain dollar threshold, some states allow the executor to record the will by mailing the required documents to the court.

Letters Testamentary

After a review of the submitted documents and forms, the court issues letters testamentary to the executor, officially appointing him or her to manage the estate and transfer the testator's assets to the heirs. The executor can then legally begin work on the estate.

Public Document

After the court issues the letters testamentary, the authenticated will becomes a public document in the court's docket that's available to third parties who request it. To read and make a copy of a will, a member of the public usually must appear in person at the relevant courthouse and fill out a form for the court clerk that identifies the relevant probate case. States charge a fee to make a copy of the will, and some charge a fee just to view a will. In some states, the names and case numbers of probate cases are available online.

Ancillary Probate

If the testator owned real estate in a state he didn't permanently reside in (such as a vacation home or investment property), the executor must commence an ancillary probate proceeding in each state where he owned property. Like the probate proceeding in the home state, the ancillary probate cases allow the executor to transfer the properties in the other states to the heirs named in the will. Some states streamline the process by only requiring submission of a copy of the letters testamentary issued by the home state. Other states require a filing similar to a home state probate: original will, death certificate, etc.

Recording a Will Before the Testator Dies

Each state requires the recording of a will after the testator's death, but most states permit the recording of a will prior to death in the real estate records for the testator's home county. Such filings were more common in the days before reliable document copying and storage became widely available as a way to prevent the loss or destruction of the will prior to the testator's death. Recording the will before the testator dies has no legal effect, however, because the testator can revoke or change his will at any time during his life. Following the testator's death, the executor must produce the original, final will of the testator to commence probate—even if it matches the will recorded during the testator's lifetime.

An online service provider can help you prepare a last and will testament that reflects how you want your assets handled after your death.

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.

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