A will needs to be filed with a court after the death of the testator. This filing begins the probate process which ensures that the will meets legal requirements and gives out the estate according to the instructions in the will, according to FindLaw. Though not a requirement, a will may also be filed with the court before the testator's death for safekeeping.
Most states have separate courts that handle wills known as probate courts. If your state has a probate court, you must file the will with this court in order to open the estate for probate. Some probate courts accept a will before the testator's death, but will not initiate probate until the testator dies. In states that do not have probate courts, you can file the will with the branch of the state courts that handles wills, such as the superior or district court.
Filing Before Death
Courts that accept a will filing before the testator has passed away may ask the testator to leave a list of people who are permitted to pick up the will from the court after the testator dies. If no one picks up the will, the court may open the will and initiate the probate process under its own power.
Filing After Death
When the testator passes away, a living relative or the executor must file the will with the probate court in order to begin probate. The will cannot be acted upon until probate has begun. The executor may request the court to begin probate if the will is filed with the court for safekeeping. If the will is not filed with the court, the executor or another relative must bring the original will to the court to file it and begin probate.
When a will is filed with the court after the testator's death, it has to be accompanied by several additional filings. The most common is the petition to open the probate estate, which asks the court to start the probate process. An executor may also need to file a petition for Letters Testamentary, which is a power given to the executor by the court that allows her to do the things required to probate the estate.
A.L. Kennedy is a professional grant writer and nonprofit consultant. She has been writing and editing for various nonfiction publications since 2004. Her work includes various articles on nonprofit law, human resources, health and fitness for both print and online publications. She has a Bachelor of Arts from the University of South Alabama.