I believe probated wills are kept by the municipality in which it was executed as public record. What about nonprobated wills, where state intestacy statutes are used instead? Is there any way to locate a will that was not probated?
AFAIK you’re pretty much at the mercy of the people who hold the deceased’s house keys.
If they want to hide a will, it’s hard to stop them.
Wills aren’t filed anywhere. Why this is, I’ll never know. Presumably it’s because people are afraid of relatives finding out something that’s filed as a public record, and starting feuds.
People always say “The lawyer or executor will tell those affected” but why would they?
If the lawyer is not in your state or county, or retired, or doesn’t read every obit with his client list in hand, he may not even know of the death until all the possessions are carted off. And the executor my just decide to keep everything.
Can you clarify what you mean? Intestacy rules apply to those who die without wills, so I’m not sure what you mean by a non-probated will.
A purported will must be probated, which means “prove up.” If it is not probated, it is not a will. Such an instrument must be executed and witnessed as the local stature provides, and until such is done, it is merely a purported will. Sometimes these purported wills are recorded in the Recorder’s Office, Registrar’s Office, or whatever office the state designates for the recordation of public instruments. Those recordings have no effect whatsoever.
Probated wills are not kept in any municipality. A recorded will (as above noted) will be recorded in the county office, but the original instrument will be returned to the party who wanted it recorded, unless the state uses the Torrence system for real estate. A will is probated in probate court, and the records of the courts are public records. But the will is not kept in the court.
IAAL practicing in this field. Wills are not required to be probated, that is, filed for record with the county probate court, if there are no assets that pass according to the will. Nowadays people can avoid probating things simply and easily by arranging their assets so that they are passed at death through joint and survivorship accounts, and payable at death accounts, and through trusts that do not require probate court supervision. Having said that, wills are still recommended as a backstop to pass any asset that isn’t provided for otherwise.
This is partly an elaboration on what zamboniracer said and partly a highjack.
IAAL who is in a Torrens-based jurisdiction for real property registration. I assume it is Torrens that barbitu8 refers to. A Torrens-based system for anyone unfamiliar (and on the remote chance that you are interested) is a land registry system where a title to a parcel of land is issued by the agency of the government responsible for administering the land registry.
The Torrens system (named after the Australian who developed it, and thank you Australia) is based on principles that facilitate commercial transactions in a jurisdiction by providing government offered certainty as to the state of the title (for both ownership and interests). The title represents conclusive proof of ownership of a parcel of land. This ensures that those searching the register do not need look beyond the title to confirm who is the party authorized to deal with the land. They are free to deal with the registered owner. A Torrens-based system will also provide for compensation offered by the Land Registry to persons who relied on the title where the Registrar made an error.
On the death of a registered title owner (a tenant in common or a sole owner), the title must be transmitted to the person authorized to act on behalf of the deceased. This will be either the executor or administrator of the estate. Rules may vary as to the evidence required by the Registry to effect the transmission. In mine, and in most I would anticipate, a copy of the letters probate or letters of administration as granted by the responsible court once the will is proved must be provided. By the way, this does not mean that the court files of the court granting the letters would cease to have their files including the will and other evidence proving the will (at least not in my jurisdiction).
If the owner held a title jointly with another person, then the survivor is entitled to apply to have a new title issued in his or her name alone. In that circumstance, the survivor must provide evidence of the death of the deceased, but is not required to provide a copy of the letters probate or administration. It is very common for spouses to hold the title to their home jointly in my jurisdiction and I expect most. And as zamboniracer said, as part of estate planning this may lead to the situation where on the death of a spouse, probate of a will (even if it exists) is not required. In that case, it is entirely possible that a will will not be available for public examination.
I am aware that some jurisdictions do maintain a Wills Registry, but don’t know whether it is a registry that is avaiable for public scrutiny.
Geez…hijack, not highjack.
In Florida and many other jurisdictions, the will is filed with the clerk of the circuit court (oribate division). These files are public records and can be searched at the court house. Sometimes the will is recorded in the Official Records and then can be searched by standard name search like any other instrumnent in the chain of title. We record wills to clear title to property. Unprobated wills are private and generally not recorded.
I went to Philly on a geneaology hunt and found my dead relatives wills from the 1930s at city hall.
The records of the courts constitute public notice and recording a will adds nothing further. In a court proceeding that may, in the future, affect property, before an order or decision is rendered, a lis pendens notice may be recorded to give notice of the pending suit.
There is no such animal as an unprobated will, despite all the remarks to the contrary. There may be an unprobated purported or prospective or alleged will, but until it is probated it is not a will.
barbitu8, pretend you are talking with a fourth grader, okay?
Hypothetical: A man wrote a document that stated that named his two daughters as executors of his “will.” He told his daughters verbally that he would be leaving everything to his wife, their mother. The mother already owned everything jointly anyway.
The man died. The daughters never saw a copy of this “document.” No will was probated. The mother said that everything had been left to her. Fifteen years later one of the daughters contacted the man’s lawyer and asked to see a copy of this “document.” He said that he no longer had a copy.
Am I correct that you are not saying that anything illegal was done? Am I correct that you are saying that there is no will officially until the document is probated? Is that what makes the document a will? Can you explain in big block letters? What was it the man wrote?
Zoe, your hypothetical is actually more complicated than you think. IAL, but not an estates lawyer.
Different jurisdictions have different requirements for what may be a “will.” Here in California, for example, I can handwrite my will with no witnesses, and it can be recognized as a will (a “holographic will”). In other places, the will must be witnessed by two people, neither of whom has an interest in the will. There are lots of variations in between.
So assuming that the man in your hypothetical lives in a jurisdiction that does not require witnesses, what he wrote could be his will after death – except for the fact that all it did was appoint executors. The oral statement “I have left everything to your mother,” could (depending on the jurisdiction) place an obligation on the daughters to make sure all his property goes to his wife. But likely not. If the mother already owned everything jointly, that can mean one of two things: she already had a half interest in everything he owned (this is the most likely meaning), or that she owned everything jointly with right of survivorship (which would mean that upon his death, by operation of law without anything more having to be done, she gets his half).
The document that you’ve hypothesized merely said “my daughters are my executors,” nothing more. The mother may claim that everything had been left to her, but she’d need a court’s help to clear up things like title on property and joint accounts. To do that, she’d have to prove she was his heir, which would require probate. In probate, if there is no will, as here, the court looks at intestacy laws – the laws that dictate what happens to your stuff if you die without a will. Under most states’ intestacy laws, the wife gets a portion or all of the husband’s stuff. In some places, a share may go to the children. So assuming that they’re in a jurisdiction where the wife takes everything, she’d be right: it was all left to her by operation of law.
The man wrote what he wanted to be his will. Until a court has reviewed it and made sure that the document meets the legal requirements to make a will, then it isn’t a will. Just a “purported” or “alleged” will. For example, if he’s in a place that requires two witnesses, both of whom must be in the room with him and each other when all three sign, that fact needs to be proved up: that he signed in front of two witnesses, who witnessed his signature and each other’s signature as witnesses, and that no one left the room while this was going on.
For a holographic will, you’d likely need to prove it was the decedent’s handwriting. Those are the types of things the court would look into before declaring that something is a will. Before that happens, all you have is a document that you hope will be your will.
I’ve probably messed this up in spots, as I’m relying on my law school classes, but I hope this helps some.
I just want to clarify a few aspects of Campion’s expert post. Joint tenancy property does not pass either by will or by laws of descent; the joint tenant receives the property directly upon the death of the other joint tenant. This has an important aspect especially in real estate, since creditors cannot attack the estate of the deceased as regards that property since it never was part of the estate. If the propery were held IJT, the mother would not need the courts.
Not probating a will is not illegal. If the will is meaningless (since all the property was held IJT or if the heirs are identical in the same undivided interests as the legatees and devisees), there would be no point in probating it. If the devisees and heirs are different, the devisees would have an equitable interest if they can establish the validity of the will. They would have the right to probate it. If the mother was engaging in some kind of fraud, that is another story.
To go back to my prior post and to clear certain things up about constructive notice, I note the following. Court proceedings are public records, just as recorded instruments. Once a judgment, order, or decree is rendered and it is entered into the docket books, it is constructive notice to all as to its contents. That is why a judgment (for money) need not be recorded in the Recorder’s Office for it to be a lien on all property owned by the debtor (except that property excluded by law). Title examiners not only must search the land indexes but also examine the docket books of all the county courts to find any and all judgments against parties who held title during the time or before the time the parties held title.
Constructive notice begins when the judgment, order, or decree is entered into the docket books, and not before. Therefore, if you file a suit in chancery or equity or any suit that may affect property, it would be wise to file a lis pendens in the Recorders Office to give constructive notice of that suit. A memorandum of judgment need not be so recorded, although I’ve seen that done. Likewise, I’ve seen wills recorded. I’ve even seen “wills” of living people recorded. Of course one doesn’t have a will until he or she dies, and any prospective will can be changed during one’s lifetime, so such recording is even more ridiculous.
So, to examine title to a parcel of land the land indexes and the court docket books must be examined, along with the tax records.
Thanks, barbitu8. If I’ve got them wrong, can you correct these definitions?
Legatee = someone who is given something other than real property in the will (i.e., a legatee may get grandma’s diamond necklace).
Devisee = someone who is given real property in the will (i.e., a devisee may get grandma’s beachfront condo).
Heir = someone who the law would give the decedent’s stuff to if the decedent had no will (i.e., I have no will, so my parents are my heirs under my state’s laws).
Lis pendens = a notice filed with the title to property indicating that there is litigation pending over that property. Anyone who buys the property with the lis pendens on it takes the property with notice of the lawsuit.
Sir Robert Torrens, an early Premier of South Australia.
Campion You have them all right.