Is a Will Legal if not Probated?

By Marie Murdock

When you are named personal representative in a parent’s will, friends and neighbors may offer advice that you should save the fees involved because probate is not really necessary. As the court is the final authority on enforcement of the provisions under a will, however, a will that is never seen by the court would hardly be enforceable by it. Just as lay opinions vary from person to person, so do situations.

State Law

If a person dies without a will, then his estate will be distributed according to the laws of intestate succession in the state where he owned property. Intestate succession laws are established laws that determine the distribution of property of persons who die without a will. If state law matches the terms of the decedent’s last will and testament such that the assets are distributed in the same manner as authorized under the will, it may not be necessary to probate. If you are the personal representative named in the will, however, exercise caution to make sure that there are no terms of the will that would not be fulfilled by the exercise of state law. It would also be prudent to obtain signed acknowledgments from all heirs that they agree with the disposition of the property and with your decision not to probate. Discuss any ramifications of failure to probate a will with your attorney.

Invalid Will

There may be instances where it is not possible to probate a will according to its terms. Under certain circumstances, all or portions of the will may be deemed invalid before you ever attempt to probate it. If the decedent has remarried after making the will and did not name his surviving spouse in the will, some states may consider the will illegal or at least voidable. The spouse may be entitled to a portion of the estate under state law, regardless of the terms of the will. If a spouse was named in the will to acquire all property of the deceased and there has been a divorce since the will was made, it may not be possible to probate the will according to its terms. The divorce may have invalidated part or all of the will, even if you file it for probate.

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Statute of Limitations

Some states, such as Texas and Alabama, have a statutory time in which wills must be filed for probate after death. Texas has a four-year statute, while Alabama’s statute is five years. Barring any court-authorized waiver of this time limit, any last will and testament not filed within the time allowed will be barred, its terms voided, and the assets of the estate will be distributed as if the deceased had died intestate.

Personal Representative

As named personal representative under the will, you generally have no authority to handle estate matters until you have been appointed or authorized by the court by issuance of Letters Testamentary. You may be one of many heirs to an estate and all heirs may agree for you to handle the estate matters, but until the will is filed for probate, you have no legal rights to transfer property or act in any other capacity on behalf of the estate. In the event a will is never probated, any actions taken on behalf of the estate will have to be taken by all the heirs of the deceased.

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