Offer the Will for Probate

Does a will have to be admitted to probate?A will must be admitted to probate to have any legal effect. A will that is written, signed, witnessed and notarized has no legal effect until a court with jurisdiction admits the document to probate as the Last Will and Testament of the decedent. Furthermore, an "executor" named in a will has no authority until he or she is appointed as the executor by the same court. Therefore, a will must be offered for probate before any legitimate action regarding the will or the estate can occur. A devisee in a will should immediately retain a probate attorney if a purported executor is distributing property prior to having any court authority to do so.

Who can offer a will for probate? An executor named in a will, or any interested person, can apply to the court for an order admitting the will to probate and for the appointment of the executor named in the will. "Interested persons" means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered.

What is the deadline for offering a will to probate? According to statute, no will shall be admitted to probate after the lapse of four years from the death of the decedent unless it be shown that the party applying for such probate was not in default in failing to present the same for probate within the four years.

Furthermore, the assets of the estate seem to disappear with the passage of time. Family members and other persons often help themselves to the assets of the estate in total disregard of the will. Often it becomes impossible to retrieve these items. Therefore, an executor named in the will should contact a probate attorney immediately following the death of the testator.

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