You may mistakenly believe that a will should be recorded before death. You may even have filed your will in the deed records in the county where you own real estate. This accomplishes nothing toward the disposition of property, and only serves to inform the public of your last wishes. Although there may be nothing detrimental about recording your will in this way, it erases all privacy regarding your estate matters, which ordinarily do not become public record until after death when your will is admitted to probate in the proper court.
County of Residence
If you are the named personal representative, or executor, in a will, you will ordinarily be the person who presents the will and appropriate petitions to the probate court upon the death of the decedent. Under most state laws, probate will take place in the decedent’s county of residence at the time of his death. As a personal representative, you will not be given full authority to act in managing the affairs of the decedent’s estate until you receive an order, referred to as “letters testamentary,” from that county’s probate judge.
County or Property Ownership
The decedent may have owned property in two different counties in the same state, but it is not necessary to probate the will in both counties. To perfect the real property records of the non-resident county, however, as personal representative, you should record a certified copy of the will in the county of non-residence. This will put the public, and specifically any title examiner who must perform a title search of the decedent’s property, on notice as to the decedent’s death and the disposition of her property.
Out of State Property
If the decedent owned property outside his state of residence, however, it will be necessary, in order to sell the property in that state, to file an ancillary, or foreign, probate proceeding in the county where the property lies. Some people may choose to file immediately after the will has been admitted to probate in the decedent’s state of residence, while others may choose to wait until they have a buyer for the out-of-state property to begin the ancillary proceeding.