Probate & Wills: FAQ

What makes a Will valid?

The details vary by state, but generally Wills are valid if: 

  • Writing: a Will generally must be in writing, though some states allow for this to be digital 
  • Execution: a Will generally must be
    • Signed by the Testator
    • Signed by two eligible Witnesses
  • Eligibility: a Will must also meet certain requirements
    • The Testator intended the document to be a Will
    • The Testator met all legal requirements (was of legal age and mental capacity)
    • There was no fraud, coercion, or duress 
  • Revocation: a Will must not have been revoked 
    • A Will may be revoked by physical act such as destroying it or even writing “revoked”
    • A Will may be revoked by operation of law in some cases
    • A Will may be revoked ba a subsequent writing, such as a more recent Will

Why do I need to notarize my Will?

A Will with a notarized self-proving affidavit provides strong evidence of the Will’s validity, removing the need for witnesses to later give testimony in court.

What is a self-proving affidavit?

A self-proving affidavit form is a simple statement added at the end of your will. You, the will creator (Testator), and those who signed your will as witnesses must sign and swear under oath, usually in front of a notary public. These signatures indicate you were the individuals who signed and witnessed the original will. Having this document eliminates the need for witnesses to testify about the validity of your will after you pass away. Learn more.

Can someone challenge the Will during Probate?

One function of the Probate process is to confirm the Will meets all requirements and is legally valid. Although uncommon, it is possible for someone to challenge the Will and allege that it should not be deemed valid.

Some more common challenges include alleging the Will was not properly executed (e.g., it lacks the required witnesses), that the Testator failed the eligibility requirements (e.g., the Testator was not of sound mind), or that the Will was revoked (e.g., a later Will was made, revoking an earlier Will).

It is important to note that a challenge does not mean the Will is going to be found invalid. In many cases a challenge is made but fails and the Will is ultimately validated and probate will proceed.

How can I find a Will after the person has passed?

If a Will has been filed with the court then it becomes a public record. Because of this, you should be able to request a copy from the court where it was filed (usually the county court in the county where the decedent resided.)

If the Will hasn't been filed with the court, you can always look through their belongings to try to locate it. The original signed copy works best, however, a photocopy or printed copy also works in most cases. 

What happens if there is no will?

When a decedent passes with a will, it is known as passing testate, and when a decedent passes without a will, it is known as passing intestate

State laws prioritize both who can be the personal representative and who will inherit from an intestate estate. 

Of course, state laws can vary, but the general order for both administrators and heirs is:

  1. The surviving spouse of the decedent
  2. Any surviving children, or the offspring of any predeceased children 
  3. Parents of the decedent
  4. Siblings of the decedent or the offspring of any predeceased siblings 
  5. Grandparents of the decedent 
  6. Aunts and uncles of the decedent (and any other extended family) 

Check out this Learn Center article: Dying Without a Will — What Happens?

 

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