Your last will and testament sets out your wishes about how you want to give away your property after you die; after which, the probate court in your state has to open a probate case to determine if your will is valid, and to do this, someone has to file your will with the court. How long you have to file a will depends on the laws of your state. Talk to a lawyer in your area if you need advice about probate filing requirements.
Some states allow you to file your last will and testament with a state official before you die. For example, the state of Minnesota allows people to file an "ante-mortem" will with the probate court for safe keeping, according to the Minnesota Judicial Branch. Filing is completely optional, and filing an ante-mortem will does not guarantee that your will is valid. Further, you have the right to change or rewrite your will even if you file it with the court.
Once you die, a friend, family member or anyone in possession of your will has to file it with the probate court to open a probate case. In many states, you have 30 days after a person dies in which to file a will with the court.
If you do not have a copy of the will but know that someone else does and has not filed it, you can ask the probate court to compel that person to bring it before the court. This is true even if the person has an old copy of the will. If there are multiple copies of a will, or multiple versions, the court has to determine which version is valid and which is the person's last and final testament.
Anyone who has a copy of a decedent's last will and testament must file it with the probate court after the person dies. When this happens, the probate court will appoint someone to act as a personal representative of the estate, sometimes called an executor. This person is responsible for notifying all potential heirs and beneficiaries that the court has accepted a will and then go on to account for all estate property and hand it out to new owners once she pays for any outstanding estate debts.
- Minnesota Judicial Center: Probate/Estates
- Dummies.com: When to File a Last Will with a Probate Court; Margaret Atkins Munro and Kathryn A. Murphy
- New York State Unified Court System. "Last Will and Testament." Accessed April 8, 2020.
- Superior Court of California, County of Santa Clara. "About Probate - How to Probate a Decedent's Estate." Accessed April 8, 2020.
- Middlesex County New Jersey. "Surrogate." Accessed April 8, 2020.
- Hawaii State Judiciary. "Circuit Court Filing Fees and Costs," Page 2. Accessed April 8, 2020.
- Middlesex County New Jersey. "FAQ Surrogate - How Can I Get a Copy of a Will?" Accessed April 8, 2020.
- Huber Law Group. "Obtaining Records." Accessed April 8, 2020.
Roger Thorne is an attorney who began freelance writing in 2003. He has written for publications ranging from "MotorHome" magazine to "Cruising World." Thorne specializes in writing for law firms, Web sites, and professionals. He has a Juris Doctor from the University of Kansas.