Are Wills Filed With the State?

By A.L. Kennedy

When a person dies, his will must be filed with the county or city probate court. Although probate courts are an arm of the state or local government, they function independently, so filing the will with another state office will not be enough to ensure that the will is probated. Instead, the will should be filed directly with the probate court, along with any paperwork the court requires.

Finding the Appropriate Court

In most states, the court that handles wills is known as the probate court. Some states, however, have a different name for this court. For instance, the California courts that handle wills are the superior courts, while Maryland still refers to its probate courts as orphans' courts. If you are unsure which court you should file a deceased person's will in, call any of the court clerks in your county or city, and they should be able to direct you to the appropriate court.

When to File the Will

The probate courts in all 50 states have deadlines for filing a will after someone's death. Usually, the deadline is from three to six years after the person has died. However, it is wise to file a will sooner rather than later. Even a short and easy probate process can take several months, so delaying filing the will only delays the distribution of the estate. In addition, you may be fined or even imprisoned by the court for refusing to file the will promptly or to hand it over for filing.

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Who Should File the Will

In most states, anyone who has the original will when the will's writer passes may file the will with the probate court. A few states prefer that the will be filed by a family member, or a beneficiary or executor listed in the will, since these people have a personal interest in how probate is carried out and whether or not the will is valid. If you have a recently deceased person's will but are not the executor, a beneficiary or a family member, you may give the will to one of these people so that they can file it with the probate court.

How to File the Will

Take the original will to the appropriate court in the county or city where the will's owner died, or the county or city where the will owner's property is located. The court will supply you with a form to file with the will. This form, known in most states as a petition to probate the will, asks the court to open a probate estate for the will. If you are the executor named in the will, you may also need to file a petition asking the court to formally recognize you as executor. Most courts have a form for you to use in this case as well. If your probate court does not have forms or the forms confuse you, consult an attorney who practices estate law in your county or city.

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