A will is a private document that remains private, until the person who wrote it passes away. The will is a legally binding document that determines the distribution of the person’s assets.
If no will is made then the person’s assets come under the control of the state of where the deceased lived. Unfortunately, laws differ from state to state. In this article, we will be discussing whether wills are public record and when they become public record.
What is a Will?
A will is a legal document, which lays out all of your wishes regarding the distribution of your assets after your death. While in other cases it also spells out the wishes regarding the care of any young children that you may have.
Normally the assets involved consist of the property that you may own. The person making the will, is also known as the testator and they with some witnesses sign and date the will once it is completed.
There are three conditions to make a will valid. These are the following:
- The person making the will (the testator) must be at least 18 years old and the person must be of sound mind.
The reason for the sound mind is that the testator must be making the will and deciding how to divide up their assets themselves. They shouldn’t be manipulated by anyone else who might be seeking to benefit from their death. Also by having a sound mind, the testator is able to understand the document they are creating and signing.
- The will must be n writing and signed.
A will must be signed either by the testator or someone who has the right authority to sign for that person’s will. The will must also be signed by two other witnesses.
In New Jersey they will accept handwritten wills whether they have or haven’t been witnessed by someone else. It needs to be clearly seen that the handwritten document is written in the deceased person’s handwriting. Also it needs to be clear that the document was intended to be the deceased’s will.
- The will must be notarized
If a will hasn’t been notarized, it doesn’t make it invalid but slows down the probate process. As more steps may have to be taken to prove the authenticity of the will. Therefore, notarization proves the legitimacy of the testator’s will.
Wills and the Probate Court
Once someone has died or not, there will be some form of probate process. Someone with a will, will typically designate a particular individual to be their executor. The executor normally files the will with the probate court. They then petition for the court to begin the probate process. During this process the executor will follow the testator’s wishes and distribute assets as part of their terms. They will also pay off any of the estate’s debts and conduct inventories.
The will is filed with the probate court in the state that the testator lived or where the testator owned property. Due to state laws that govern wills, the procedure for granting access to the testator’s prosperity can differ from state to state.
Not all wills go through the probate process. If the deceased has assets that are below a certain threshold, which again differs from state to state, then the settlement can be handled privately.
Public Record or Not?
Any wills that have gone through probate does then become a public record, which pretty anyone can look at or get a copy of. You can go to the local courthouse in the state of the deceased and ask to attain a copy of their will for a small fee. However, if you can’t go to the courthouse in person you can request a copy of the will to be mailed to you.
However, if the will you are looking for has not been filed for probate, then it isn’t a public record. As a result, only a limited number of people are allowed to see the will. These people include any named beneficiaries, personal representatives and guardians for any minor children. If you are unsure whether you have been named on the will but have a strong feeling that you have been, then you can take legal action.
In some states it is actually illegal for someone to be in possession of an original will and to not fill it, with the appropriate probate court. Especially after the testator has died. In some circumstances the probate court isn’t needed. However, you always need to check the laws and rules of the state that you are in.
How to Find a Will
If your will has been filed in the appropriate probate court, then it is a public record and you obtain a copy. To find the will that you are looking for you will need some of the following information:
- The deceased person’s full legal name. This includes their first, middle and surname.
- The deceased date of death.
- Last place of residence – Probate records are kept in different courts depending on the state the testator lived in or own property in. You can normally find this information from the Social Security Death Index.
- With all this information you should be able to find the public record that you are looking for. You may be able to view the will online, while other times you have to order a copy of the document. Public record wills are much easier to find than wills that haven’t been filed with probate.
If you want to find a private will, then you may have to go to the family of the deceased or obtain legal action. Most wills are typically filed with the probate court, but there are some certain circumstances where this doesn’t happen. This can then make getting a copy of the will much more difficult.
A will is an important legal document that is kept private until the testator has died. Once the testator has died, then their will is revealed to the appropriate people. Most wills are then filed with the probate court, which then makes the will a public record, that anyone can access. As a result, a will is a public record if it has been filed with the appreciate probate court. Otherwise, if it hasn’t been filed then it is not public record.