After a will is created, it can be safely filed almost anywhere: with a lawyer, in a safe deposit box, desk drawer…Options depend on the degree to which privacy and security are a concern. It is essential for the designated executor to know where and how to obtain the will. Upon the death of the testator, wills are filed in court, becoming public record.
Publicly Filing A Will
Generally, a will is filed in probate court, by the executor named in it, upon the death of the testator—the person who created the will. Some states do allow for the filing of a will prior to the death of the testator, though this is not typically advisable. As Probate Stars explain, there’s good reason that a will does not become public record until the death of the testator:
Just because someone makes a will, does not mean that you will be able to find it in the public records. Most people do not file their wills with the court during their lifetimes. Other people file someone’s will after that person’s death. This makes sense, because wills are ambulatory, meaning that someone can change their will at any time. You generally don’t want a will to be public record that is not actually your final will. To find out if someone has a will before they die, the best thing to do is simply ask.
When a will is created, one of the important decisions made is the designation of a family member, friend, or professional to administer the estate. Generally, this representative is referred to as an executor. An executor has a fiduciary responsibility to act in the best interest of the estate and beneficiaries.That’s why executor bonds have long served as a protection for everyone involved. Sometimes these bonds are specifically requested during the probate process. Essentially, an executor bond guarantees the faithful performance of the executor in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bond: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even before leaving probate court.
It is of course important to arm executors with as much detail about our affairs as possible. This includes communicating both intentions about our assets, and the tangible information that will be needed to settle debts, close accounts and ultimately distribute assets to beneficiaries. When an executor is named, share pragmatics, like the location of the will and other critical documents, as well as information about accounts, passwords and so on. Afterall, no one wants loved ones to end up in probate litigation, following this kind of painful mistake:
When Olympic sprinter Florence Griffith Joyner died at 38, in 1998, her husband couldn’t find her original will, and failed to file it with the probate court within 30 days of her death, as required by California law. Joyner’s husband and mother took disputes, including whether Joyner promised her mother could live in their house the rest of her life, to court. Joyner never filed the original will, and the judge eventually appointed a third party to administer the estate.
Good To Know: Finding a Will In Public Records
Once a will has been filed, it is public record—but can sometimes be difficult to find. Probate Stars offer these tips:
- Determine in what county the decedent resided. A decedent’s estate is probated in the county where the decedent was a resident.
- Most courts have a website. You can likely find it by typing in something like: “(name of county, state) clerk of court.” You will need to locate “court records” …on the website, and then type in your decedent’s…name. If a probate has been opened, or a will filed, you will see this in the docket on the court website. Sometimes you can access the will itself online. If not, you can find …the case number, the name of any attorneys, and if there is a personal representative appointed.
- Go to the courthouse and ask one of the probate clerks to help you and obtain a copy of the will…If you are not local, call the clerk of court and give them the name of the decedent and the case number so that they can locate the will and send you a copy.
Estate Planning Law Practice?
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