When to File a Last Will with a Probate Court
As an estate administrator, you assume responsibility for the decedent’s will. You also decide whether probate court administration of the decedent’s assets is necessary. Probate is a process that includes the following key steps. First, the decedent’s will is proved valid or invalid. Then, the decedent’s assets are administered in the probate estate with probate court supervision. To begin the probate process, you must file the will with the probate court.
Probate court rules and practices can differ from state to state and even county to county. And not all courts that administer wills are called probate courts. So there will be some differences in how your decedent’s county and state handle probate administration from the process described here.
In most states, if you are the person who has the decedent’s will, you must do either of the following within a certain period of time after the decedent’s death:
Deliver the will to the executor.
File the will with the probate court.
In many cases, the allowed amount of time is 30 days. If you know that the person in possession of the will has not filed the will, you may notify the court so that the court can compel the filing. Then the probate process can begin.
In practice, you file the will with the petition for probate if you decide probate is required, hopefully within that 30-day window. Most courts give you some leeway, but you should make sure that you know if your probate court will. If it turns out there are no assets requiring probate, simply take the will to the probate court and sign a statement to that effect.
If the decedent left a will but the estate doesn’t have any assets subject to probate, the law still requires you to file the will. Just inform the probate court that, to your knowledge, no assets are subject to probate. This situation can arise in the following cases:
The decedent has fully transferred all of his or her assets into a revocable trust before death.
The decedent held all of his or her assets jointly with rights of survivorship with the surviving spouse or other persons.
The decedent died penniless.