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When are the Provisions of a Will Valid?

Sep 08

I have the situation come up from time to time where a person erroneously relies on the provisions of their deceased loved one’s will. How can a person erroneously rely on a provision in a will? If the will is not “probated,” then the provisions it contains are worthless. For example, let’s say that Sam’s father died unmarried, leaving a will in which he left his entire estate to his son Sam, but disinherited his other two children Jane and Lucy. Everyone accepts the provisions of the will, but it is not probated. Ten years later, Sam decides to sell his late father’s estate and finds out that he and his sisters actually each own a one-third interest in the property. Sam discovers this is true because he didn’t have his father’s will probated. More shockingly, the next thing he finds out is that it is too late to probate the will and he therefore owns a third interest in father’s entire estate with his otherwise disinherited sisters.

The probate process is initiated in the county of the decedent’s legal residence at death. Somebody acting on behalf of the deceased must come forward with his or her original will. Usually, this person is named in the will as the executor, chosen by the deceased as the one in charge of “wrapping up” his or her affairs. Executors may also be referred to as the deceased’s personal representative. 

The executor-to-be should file a Petition for Probate of Will and Appointment of Executor. This is done at the probate court clerk’s office. Probate court is a division of the state court system. A copy of the death certificate must also be provided to the court.

A date is then usually set for the person named as executor to appear before the probate judge (Judge Melvin Salter in Cherokee County), present the original will and ask to be formally appointed as executor. The probate judge’s appointment of an executor confers on that person full authority to deal with the deceased’s probate property and accounts. The executor is given a certified court document that must be honored by financial institutions and others. This document is called the “Letters Testamentary.” After a will’s genuineness and validity are established (usually by simple inspection of the document) the court will issue an order “admitting the will to probate.” The County Clerk will then record the will and associated records in the probate record room. It is only at this point that the terms of the will are valid and enforceable. Once probated, a will and subsequent related filings are public record which are open to inspection by anyone.

The important thing to remember with a will is that you have five years after the death of the testator (or person who made the will and is now deceased) to admit it to probate. After five years, the will is invalid and the deceased’s property passes through what is called “intestate succession” which we will cover next week.