Do Wills Have to Be Filed?

By Marie Murdock

The purpose of a last will and testament is to leave instructions regarding the distribution of property after death. In order for the court to recognize the distribution, however, the will must be filed for probate. This does not mean that property cannot be distributed without the approval and/or oversight of the court, as there may be several situations in which a personal representative may choose not to probate a will.

When Title to Property Passes by Survivorship

If the deceased and his spouse owned their home with rights of survivorship in their deed, then his entire share of the real property transfers to his spouse at his death with no action required in probate court, notes the Arizona School of Real Estate and Business. If she wants to sell or mortgage the property, then all that will generally be required by a bank or title company insuring the transaction will be proof of death of her husband. As long as all assets were titled in this fashion so that the entire estate passes to the spouse at death, there may be no need to probate a will.

When Devise Matches State Law

The laws of intestate succession for each state determine what happens to property after death. If the terms of the will match the state laws of descent and distribution or the laws that establish inheritance for your state, it may not be necessary to file or probate the will. However, if there is real estate belonging to the estate that will need to be sold within the first few years after death, it may be advisable to probate the estate anyway, as a title company may be required to issue a title policy that takes exception to issues which may arise due to a recent death with no probate. Also, any documents that require conveyance of legal title will have to be signed by all heirs to your estate, and an affidavit may have to be executed by a disinterested or unrelated party stating the names and ages of all the heirs of the deceased, according to the Fortenberry Law Group.

Protect your loved ones. Start My Estate Plan

When Property Is Distributed Prior to Death

You may choose to give away all your property prior to your death so that a will no longer serves any purpose. You may deed your property to your children in advance, keeping only a life estate, or right to live on the property. At your death, this right would terminate. If you have two children, you may set up two joint bank accounts with a child on each account, so that at your death, the money belongs to the child whose name is on the account. Some people even choose to give their personal effects to their children while they are still alive.

When it Is a Small Estate

Some states allow an estate to bypass probate if the estate is under a set amount; the assets in such a case are transferred with the use of a small estates affidavit. Although the procedure may vary from state to state, this method of transferring the assets of the deceased will save the heirs time and money over having to file a full-blown probate proceeding.

Protect your loved ones. Start My Estate Plan
Is Probate Required to Transfer Property Left in a Will?

References

Related articles

Problems With Selling the Property of an Heir

Traditionally, an heir is defined as a person who receives property from an estate due to intestacy. When a person dies without a valid will, the intestacy rules of a state provide how the estate will be distributed. Generally, the intestacy rules distribute the estate to the decedent’s surviving spouse, children and close relatives. Heirs’ property is parcels of land that are transferred to heirs through intestate. This land is co-owned by multiple heirs as tenants in common. Common examples of heir’s property would be a family home or summer house. The co-ownership of this type of property can pose several problems if one of the heirs wishes to sell his interest in the property.

Tenants by the Entirety in a Divorce

Tenancy by the entirety is a legal doctrine allowing for a specific form of marital property ownership. The legal doctrine is not recognized in all states and there are many other options when it comes to determining how to assign marital property. There are several ways to end a tenancy by the entirety arrangement, including divorce.

Where to Probate a Will

A personal representative named in a will may have many and varied duties during probate. Once a death has occurred, he should present the will to the probate courts for acceptance and to receive the court’s authority to act. He may, however, be uncertain as to the location of the proper court.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

When Not to Probate a Will

If you have a will prepared and do not need it due to alternate estate planning, your loss will be the cost of the will ...

Joint Tenants With Rights of Survivorship Vs. a Will

You may have heard the term "survivorship deed" in conversations relating to estate planning, and so you may be ...

Colorado Law: Death Without a Will

You may want to bypass the probate process when planning a Colorado estate. Methods of disposing of property at your ...

How to Add a Husband's Name to the Deed or Leave the House to Him in a Will

If your husband is not on the deed to your home, you might want to add him as a joint owner. Having both spouses on a ...

Browse by category
Ready to Begin? GET STARTED