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Do You Have to File a Will?

After a loved one dies, there are many tasks to take care of. One of these tasks is to locate the original last will and testament if there is one. You may not know who the executor or personal representative is until you find the will, and once you locate it, you must file it with the local probate court.

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Locating the Original Will

It is important to locate the original will as soon as practical. If you have a copy of the will and know that you are the nominated executor or personal representative, then you should have a good idea of where to find the original. If you are unsure if there is a will, you will have to look for it. Here are some common places a decedent may keep the original will and other estate planning documents, as well as important contact information you might need to manage the estate:

1. Desk Drawer or Storage Cabinet in Home

Sometimes you may find the will in an obvious place, such as a desk drawer or filing cabinet in the decedent’s home. You may find it in a box, in a closet, or stored in a storage room. You may even find it inside a desk drawer or cabinet at the decedent’s office.

2. Safe in Home

You might find the will in a locked safe in the decedent’s home. The next task is to determine the lock combination or locate the key. This information could be in a desk drawer or file cabinet or in the possession of a trusted family member or friend.

3. Safe Deposit Box at Bank

The original will may be in a safe deposit box at the decedent’s bank. You need to talk to the bank and ask how to access the safe deposit box to search for the will. Access will depend on who owns the bank account, who has the authority to access the box, and the bank policy. Some banks freeze safety deposit boxes until a probate court orders otherwise. Sometimes a bank will allow you to take out the will and nothing else.

4. Estate Planning and Probate Attorney’s Office

The decedent’s estate planning attorney may have the original will or at least a copy of the will. If not, the decedent’s attorney may have more information about the location of the original will and any other estate planning documents of the decedent.

5. Local Probate Court

The will may be at the local probate court for safekeeping. If so, contact the court to inquire and obtain a copy.

File Original Will With the Probate Court

In most states, you must file the original will with the local probate court where the decedent lived within 10 to 60 days from the date the original will is found. These state laws impose severe sanctions for noncompliance, with some states imposing criminal or civil charges against a person who finds an original will and does not file it within the deadline. Check with your state’s probate law on will filing requirements. If your state requires you to file the will, the best thing to do once you find the will is to make a copy and immediately file the original with the local probate court, whether you are the nominated executor or not.

Filing the will is different from starting a probate proceeding. Filing the will with the probate court places the will in the public domain so potential heirs and creditors can make claims, if necessary. The filing may result in a probate proceeding, but a probate proceeding is an actual court proceeding that must is filed and commenced separately.

What if I am Unable to Find the Original Will?

Copy of Will but No Original

A probate court requires an original will, so if you can only find a copy and think it is a copy of the original, you will have to open probate proceedings to request the probate court approve it as a true copy. You will likely have to provide evidence of the testator’s intent through the testimony of witnesses, beneficiaries, and any supporting documentation.

No Original and No Copy of the Will

Many states presume that if no will is found, then the decedent did not have a will, or they revoked it before their death. You can petition the court to consider the existence of a will through the testimony of an attorney who may have drafted the will, witnesses who witnessed the signing of the will, and other witnesses who can testify as to the testator’s intent. If you cannot establish the existence of a will, then the state’s intestacy laws will direct the distribution of the estate through intestate succession.

What Happens After You File the Will With the Probate Court?

Just because you might need to file the original will with the probate court, this does not necessarily mean that the decedent’s estate will go through the probate process. If there are no probate assets and no challenges to the will, then there may not be probate assets and no need for a probate proceeding.

What is Not Included in a Probate Estate?

You may find that all the deceased’s assets transfer independently and outside of the provisions of the will, in which you do not have to open a probate case. Here are common examples of assets that transfer without regard to a will:

  • Assets held in a living trust
  • Life insurance policy with a beneficiary designation
  • Retirement account with a beneficiary designation
  • Investment and security accounts with a beneficiary designation
  • Real estate in joint tenancy with right of survivorship or other joint ownership
  • Real estate with a transfer on death deed with named beneficiaries
  • Bank account with a pay-on-death designation that will transfer ownership to a beneficiary
  • Co-owner accounts
  • Vehicle in joint ownership or with a transfer on death deed

What is Included in the Probate Estate?

Generally, property that is in the decedent’s name alone will be part of the probate estate. The probate court will award assets to the beneficiary designated for that asset in the will and, if there is no will, through the intestacy laws of the state. In addition, if there is a will contest, this must be through the probate process.

If you need additional assistance in sorting through the issues of a deceased person’s estate, you should contact a probate lawyer for legal advice and assistance.

Create Your Estate Planning Documents

If you want to create your own estate planning documents, our state-specific Estate Planning Documents are available to assist you with your Last Will and TestamentFinancial Power of Attorney, and Health Care Directive and Living Will.

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Written by:

FindLaw Staff

Contributing Author

Reviewed by:

Catherine Hodder, Esq.

Senior Legal Writer