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 (property and assets) after their death.

Wills are the most common legal document people use to communicate what they would like to have happen with their estate (property and assets) after their death.

A will is like an instruction booklet prepared for the probate court regarding a decedent's estate.

The probate court oversees the legal process for transferring your assets. The probate court manages the oversight of the estate's administration and resolves disputes over the will.

Types of Wills

Several types of wills accomplish the goals of naming an executor and transferring assets:

  • last will and testament is the most common one. You can create and customize a simple will using online forms. FindLaw's Legal Forms and Services is one such example. 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.
  • testator creates a pour-over will to transfer assets into an existing trust after the decedent's death. A testamentary trust document within a will transfers assets from an estate into a trust established by the will.
  • 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. No one can change the terms of a joint will after the first spouse's death.
  • A mutual will is a form of joint will. Each spouse has their own will. The two wills mirror each other.
  • A living will does not transfer assets. A living will communicates a person's health care instructions to a loved one.

The executor's work in the administration process depends on the will type. The complexity of the estate also factors into the level of work required of the executor.

Where Do I Store the Will?

The person named the executor of a will must 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: This storage place may be vulnerable to destruction in a fire or flood.
  • In a fireproof and waterproof safe in your home: A thief could pick up and steal it if it is small.
  • In a bank safe deposit box: State law may require a court order for an executor to access it. Be sure your executor knows the safe deposit box's location.
  • Filed with the county clerk where you live: 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 is lost. The probate court may have additional legal procedures to admit a copy.

Entering a Will Into Probate Court

The first step in estate administration is for the executor named in the will to file paperwork. They must file paperwork in the county where the decedent lived or owned property. They should include the original will and death certificate.

They will ask the court to acknowledge them as executor. The person named as the executor may disclaim the role and decline the position. They can request the court to designate someone else.

The court may schedule a hearing date for an executor to be approved and a probate case opened.

Will Executors

A will usually appoints an executor or personal representative to administer the decedent's estate. As a trusted fiduciary, the executor must act on behalf of the estate. They hold a position of trust. Executors must manage the property that belongs to the beneficiaries with great care. They typically owe a fiduciary duty of loyalty and care to the beneficiaries and the property they manage.

The executor handles every part of the probate process, including:

  • Filing court documents
  • Locating heirs
  • Consolidating and managing the estate's assets — i.e., death benefits from Social Security and life insurance policies, bank accounts, annuities, real property, etc.
  • Collecting any debts owed to the deceased at the time of death
  • Determining the value of the estate with appraisals of assets of the estate
  • Identifying the estate's debts and determining if they are valid
  • 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:

  • Handwritten (called a "holographic will")
  • Typed or printed
  • A mix of printed and handwritten

Any of these forms may be valid. However, each must meet all other legal requirements under your state's probate law. These requirements can include:

  • The will must be in writing
  • The testator must sign the will unless they are unable to do so
  • If the testator is unable to sign the will, they can direct another person to sign the will in the presence of witnesses
  • The signature must be witnessed and notarized as required by state law
  • Some changes may be made by amendment (a "codicil") without requiring a complete rewrite

valid will remains in force until revoked or superseded by a subsequent valid will.

Oral Wills

Some states recognize an oral will as a valid will. These are sometimes called "deathbed wills" or "nuncupative wills." The requirements for a valid oral will vary. Requirements may 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 specific time

In such a situation, witnesses may hear different things. They may 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. 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 you have no control over who receives your property.

In some situations, intestacy results in people receiving property who would have never received property from you. It could also mean that close friends or charities you favor will receive nothing.

The estate goes to the government in its entirety when no relatives exist.

Video Wills

While video wills may appear on TV shows, the probate court does not recognize video wills. A video may accompany a written will. However, the written will control the distribution of property.

Contesting the Validity of a Will

An interested party can challenge a will in probate court. Any person with legal standing can challenge the will. Parties that may have legal standing include:

  • Creditors of the estate
  • Beneficiaries named in the will
  • Heirs who would inherit if the probate court declares the will invalid

Some wills include a no-contest clause. If a person contests the will in court and loses, they are disinherited. No-contest clauses are not enforceable in every state.

Reasons to challenge a will include:

  • 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 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. The spouse must give consent. A spouse typically provides consent in the form of a prenuptial agreement.

In most jurisdictions, a surviving spouse has a right of election. This allows the spouse to take a legally determined percentage of the estate when dissatisfied with the will. That percentage may be one-third to one-half of the estate.

A testator can disinherit nondependent children. The will should clearly state such a preference to avoid possible legal challenges.

Not Every Will Requires Probate

In large estates, the only way to legally transfer assets under a will is through the probate process. A will may not have to go through the probate process for small estates. Only a short estate proceeding may be required if the estate's value falls below a certain threshold established by state law.

Methods other than the probate process transfer some assets. A will does not control the distribution of some property. Property may transfer through beneficiary designations, on death orders, or through joint tenancy. Examples of such transfers include:

  • Life insurance proceeds with beneficiaries designated in the policy, which a will can't override
  • Property held in joint tenancy, which provides that the deceased person's interest automatically passes to the surviving joint tenant(s)
  • Property held in an established revocable living trust
  • Retirement accounts with a named beneficiary
  • IRAs subject to a beneficiary designation
  • A bank account subject to a transfer on death or payable on death order

Adding beneficiary designations or titling property to transfer upon death can be an efficient, effective way to avoid probate.

See Also

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 can help. They can offer legal advice and hands-on assistance from the date of death to the distribution of the decedent's property.

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