A will has no legal effect if not filed with the court and accepted as a legitimate document meeting the testamentary requirements (which is known as probate). Many people do not know this, and they do not know that a will must be probated within five years of death.
If the will is not filed within five years of death, then the law of intestacy determines where property passes, and it may result in very unfortunate consequences for the intended beneficiaries.
The best way to explain this is an example:
Mrs. Smith’s husband died last year, and she decided to update her will. They owned multiple pieces of property, most of which they owned as joint tenants with right of survivorship (meaning that when the first owner dies, the other will automatically own all of the property). But the one piece of property on which their home is located was owned by her husband without right of survivorship. Since most people don’t sit around reading deeds after the death of a spouse, Mrs. Smith did not know this until the deeds were produced to rewrite her will. Her husband’s will left everything to her, so if his will is probated, no problem. But if his will is not probated within five years, she will own her home property jointly with his children by a previous marriage. Not only will she be unable direct all of the property to pass to the children of this marriage at her death, if she wants to downsize she will not be able to sell the property without the agreement of her husband’s children by a previous marriage. And if those children agree to sell, she will only get half of the proceeds from the sale. This could have been a serious problem for Mrs. Smith if she had not found this need to probate her husband’s will within five years of his death.
The best practice is to always check to see if a will needs to be probated rather than assuming it does not. With that said, not all wills need to be probated. For instance, there may be nothing in the probate estate to pass because all assets were jointly titled in bank accounts, and the home was owned by the spouses as joint tenants with right of survivorship. But if there is property that does not automatically pass to others, take action sooner, rather than later, to determine what you need to do.
January 12, 2023 at 12:37 am
Thank you for warning us that the will won’t have any legal effect if not accepted as a legitimate document in court, which is why it must be probated. My grandma passed away recently and left her assets for my mother to inherit, so she needs to get the will probated soon for it to take effect. I hope my mom finds a trusted and skilled probate attorney to guide her throughout the process.
March 1, 2023 at 12:13 pm
We appreciate you letting us know that the will has to be probated because it won’t have any legal impact if it isn’t recognized as a valid document by the court. My grandma just died away and left her possessions for my mother to inherit; therefore, the will must be probated quickly to be effective. I’m hoping my mom can locate a dependable and knowledgeable probate lawyer to help her through the procedure.