Estate Administration: The Will After Death
Wills are the most common legal document people use to communicate what they would like to have happen with their estate after their death.
A will is like an instruction booklet prepared by the deceased person for the probate court (the court that oversees the administration of the estate and resolves disputes over the will).
Types of Wills
There are several types of wills that accomplish the goals of naming an executor and transferring assets:
- A last will and testament is the most common one. A simple will can be created and customized using online forms such as those provided at FindLaw's Legal Forms and Services. For a more complex last will and testament, or if you expect problems with heirs, you may wish to work with a local estate planning attorney.
- A pour-over will is used to transfer assets after the decedent's death into an already existing trust. A testamentary trust document within a will transfers assets from an estate into a trust that is established by the will.
- A joint will is a single document signed by two (usually) spouses. When the first spouse dies, the estate transfers to the surviving spouse. Upon the second spouse's death, it passes to the children of the marriage. The terms of a joint will cannot be changed after the first spouse's death, which is one reason that these wills are not used as often today. Furthermore, the transfer of property can be accomplished in other ways, such as joint tenancy with rights of survivorship.
- A mutual will is a form of a joint will. Each spouse has their own will but the two wills mirror each other.
- A living will does not transfer assets but instead communicates to a loved one the person's healthcare instructions.
The amount of work that the executor has to do in the administration process will depend on the type of will, as well as the complexity of the estate.
Where To Store the Will So It Can Be Accessed
The person who has been named the executor of a will needs to be able to access the original document at the time of death. One hopes the testator has carefully considered where to store the will.
Possible locations include:
- With the estate planning lawyer who drafted your will. Be sure your executor knows who your lawyer is and how to access them, even years later.
- In a file cabinet in your home, which would be vulnerable to fire or flood.
- In a fireproof and waterproof safe in your home which, unless it was large, could be picked up and stolen by a thief.
- In a bank safe deposit box, which state law may prevent your executor from accessing without a court order. Be sure your executor knows which bank the safe deposit box is located in.
- Filed with the county clerk where you live, although this may present difficulties if you move.
The probate court judge will want the original will. A copy may be admitted into probate if the original has been lost but may require additional legal procedures.
Entering a Will Into Probate Court
The first step in estate administration is for the person who has been named executor in the will to file paperwork in the county where the deceased person lived or owned property. The original will and a death certificate should be included.
The person will ask the court to officially acknowledge them as executor, or they may decline the position and ask the court to name someone else.
The court may schedule a hearing date at which an executor will be approved and a probate case opened.
A will usually appoints an executor or personal representative to administer the decedent's estate. As a trusted fiduciary, the executor handles every part of the probate process:
- Filing court documents
- Locating heirs
- Consolidating and managing the estate's assets — death benefits from Social Security and life insurance policies, bank accounts, annuities, real property
- Collecting any debts owed to the deceased at the time of death
- Determining the full value of the estate with appraisals of assets of the estate
- Identifying the debts of the estate and determining if they are valid (This includes mortgage debt, car loan debt, credit card debt, personal loans, etc.)
- Paying the debts and selling assets of the estate, if necessary
- Filing the deceased's final income tax return with the IRS and state and federal estate tax return
- Distributing personal property, real estate, and remaining assets to the named beneficiaries as stated in the decedent's will
Is the Will Valid?
One of the first things the probate court judge will do is review the will to ensure it is valid. A will may be:
- Entirely handwritten (called a “holographic will"), it may be typed or printed, or it may be a mix of printed and handwritten.
Any of these forms may be valid if it meets the other legal requirements of your state's probate law, such as:
- The will must be written
- The testator must sign the will unless they are unable to do so, in which case they can direct another person to sign the will in the presence of witnesses
- The signature must be witnessed and/or notarized
- Some changes may be made by amendment (a "codicil") without requiring a complete re-write
A valid will remains in force until revoked or superseded by a subsequent valid will.
Some states recognize an oral will as a valid will in certain situations. These are sometimes called a “deathbed will" or a “nuncupative will." The requirements for a valid oral will may vary, and include:
- Two or three witnesses
- Witnesses who are disinterested parties meaning they won't inherit
- A testator in imminent danger of death, such as in the hospital or on active duty in the military, in a war zone, or at sea
- The will be written down later by the witnesses within a certain amount of time
In such a situation, witnesses may hear different things, forget things, or may misunderstand what was said. It is much easier to challenge an oral will. If the challenge is successful, inheritance rights will revert to state intestacy law and it will be as if the person died without a will (intestate).
Inheritance rights in intestacy will first go to a surviving spouse, children, or grandchildren. If there are none, then the estate will be divided between more distant relatives. Intestacy means that people who would never have been chosen to receive property may do so, while close friends or charities that the deceased favored will receive nothing.
If no relatives are found, the estate goes to the government in its entirety.
While video wills may appear on TV shows, they are not recognized as valid wills in and of themselves. A video may accompany a written will but it is the written will that is followed.
Contesting the Validity of a Will
A will can be challenged in probate court by a person with legal standing to do so. That includes creditors of the estate, beneficiaries named in the will, and heirs who would inherit if the existing will was declared invalid.
Some wills include a no-contest clause. If the will is contested in court and the person bringing the lawsuit loses, they are disinherited. No-contest clauses are not enforceable in every state.
- The person making the will was not mentally competent due to senility, dementia, drug use, mental illness, or some other mental incapacity
- A beneficiary suspects someone used undue influence or coercion to cause the testator to change the terms of their will
- A family member who has a legal right to inherit was not named in the will and thinks they should have been included
- A newer will exists
- An heir suspects that the will that has been presented to the probate court is fraudulent or forged
The terms of the will itself may also be illegal under state law. Some laws prohibit the disinheritance of spouses or minor children. Often a married person cannot completely disinherit a spouse without the spouse's consent, usually in the form of a prenuptial agreement.
In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally determined percentage of the estate if they are dissatisfied with the will. That percentage may be 1/3 to 1/2 of the estate.
Nondependent children may be disinherited, but this preference should be clearly stated in the will in order to avoid possible legal challenges.
Not Every Will Requires Probate
In large estates, the only way to legally transfer assets in accordance with a will is through the probate process. For small estates, a will may not have to go through the probate process. If the value of the assets is below a certain threshold established by state law, only a short estate proceeding may be required.
Some assets are transferred by means other than the probate process. A will does not control how they are distributed.
- Life insurance proceeds are paid to the beneficiaries designated in the policy. Even if the writer of the will forgets and names another heir in the will to receive the life insurance benefits, the beneficiary designation controls this part of the estate. It can't be over-ridden by a will.
- Property held in joint tenancy, which provides that upon the death of one joint tenant, the deceased person's interest automatically passes to the surviving joint tenant(s).
- Property held in an established trust.
Get Legal Help Administering a Person's Estate
Probate proceedings can be time-consuming and complex. If you have any particular estate administration needs, an estate planning attorney will be able to offer legal advice and hands-on assistance from the date of death through to the distribution of the decedent's property.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations