Although wills are often intensely personal by design, they become public record at some point after the testator -- the person the will belongs to -- dies. Before that time, they are not legal documents and are the private property of the testator. With a few exceptions, wills are usually required to be filed with the court for the probate process. Once the court has possession, wills begin channeling through the probate process, are eventually filed and become available for public access.
Wills are often filed with the court nearest the residence of the deceased person at the time of her death. If she had two homes in different cities, counties or states, such as a summer home and a winter home, one was probably considered her permanent residence and the other was not. Once it is public record, the county clerk's office is a good starting point for locating a will. If the will is not public record at the courthouse closest to where she is believed to have lived, it may be filed with the court nearest her other home. Some states allow citizens to file wills with the county clerk for safekeeping before the testator's death. Those wills are not public record.
Wills are not always available for viewing immediately after a person dies. The probate process takes time, and they may not be at the public’s disposal until after the estate is settled. If the estate is complex, probate could last a year or more. If the will is contested, even more time may be required before issues are resolved and the estate is closed. Laws and practices vary by state. If the will is not public record at one time, it should be available at a later date.
Just as laws vary by state, so do the formalities for accessing another person’s will. Courthouses in small towns may keep relatively small and informal records rooms with only one custodian or clerk in charge. Larger courthouses may have a series of records rooms with numerous attendants overseeing operation. A photo ID may be required, and you may be asked for other information to enter in a log or visitor’s book before releasing a will for viewing. Some courthouses keep wills in large binders with other wills that became public record near the same time. In those cases, they may also provide a table or desk to make handling the binder less cumbersome. In many cases, copies of wills are available for a small fee. The attendant will likely be the person to make the copy to help prevent damage to original documents. More modern facilities record wills digitally to prevent handling of original documents.
Locating Old Wills
Finding an old will from several generations past is often difficult, and sometimes impossible. Some very old wills may be archived at a different location than the clerk's office. In many cases, wills more than 50 years old are preserved on microfilm with the original documents stored elsewhere. Some courthouses have public-use viewing machines for inspecting will images stored on microfilm. Locating a will from more than 100 years ago can require a significant amount of patience, persistence and travel. Genealogy societies that research old records may be of more assistance than a courthouse in those situations.
Carole Oldroyd, a writer based in East Tennessee, has authored numerous DIY home improvement, Human Resources, HR and Law articles. In addition to holding a degree in paralegal studies, she has more than 10 years of experience renovating newer homes and restoring historic property.