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Since you’re not going to be around when this happens, we thought we’d let you in on what happens to your Last Will and Testament after you die.

• First, someone has to locate it – which is why we recommend keeping it someplace safe yet convenient. When you purchase a legal document package from Rainbow Law we’ll let you in on a great storage place that is fir resistant and easily accessible at all hours of the day and night.
• Once it is located, the will must be presented to the court having jurisdiction over your estate. Normally, that would be a probate court (or similar court designated to hear probate matters) within the city or county in which you lived at the time of your death.
• Once presented to the court, someone (generally your surviving spouse/partner, child or other family relative) will petition the court for admission of your will to probate. At that point, the court will schedule a hearing to determine whether your will should be admitted to probate. At the same time, it will send notice of the hearing to everyone who might have an interest in your estate, including those individuals and entities specifically named in your last will and testament and those individuals who are your heirs-at-law.
• Your heirs-at-law are notified because, if your will is not admitted to probate, then your heirs-at-law (people who inherit or have the right to inherit your stuff when you die) might be entitled to a share of your property under your state’s intestacy (dying without a will) laws. Many states will forego a hearing on the admissibility of a will if all of the interested parties agree in writing that they do not object to the admission of the will to probate. In that case, the court will admit the will without a hearing.
• If a hearing is held by the court, any party who has an interest in your last will and testament (referred to as “standing”) is entitled to object to its admission to probate. If no objection is made, the court will admit your will to probate without a hearing.
• At the same time, the court will appoint a personal representative to settle your estate. In most cases, the court will appoint the individual(s) or entity(ies) you named in your will to serve as your personal representative. However, the court is not required to appoint the person or persons you named in your will and may appoint a totally independent person or entity if it finds that one or more of your appointees are not suitable for one reason or another.
• If the court does approve the person(s) you nominated, then that person or entity will be referred to as your Executor, if a male or an entity, or as your Executrix, if a female, although many states now prefer to simply refer to anyone serving in that position as your Personal Representative.
• If an objection is made to the admission of your will, then the court will conclude the hearing and schedule another hearing to consider the merits of the objection. This hearing, which is commonly referred to as a will contest, is actually conducted as a court trial whereby both the proponents and the opponents of the last will and testament are able to present their cases in accordance with the proscribed rules of evidence and procedure.
• In most will contests, the proponents of the will are called upon first to demonstrate that the will meets all the requirements for a valid will; i.e., that the will is written and that it is signed by the testator and witnessed by two witnesses.
• At least one witness is called upon to testify that he or she did, in fact, witness the testator’s signature and that the testator declared the document to be his or her last will and testament.
• However, many states now provide for a “self-proving affidavit” by the witnesses to the will, which is an affidavit made by the witnesses at the time the testator signs his or her will, which is then attached to the will. The self-proving affidavit attests to the fact that the testator signed the document in the presence of the witnesses, that the testator declared the document to be his or her last will and testament, and that, at the time of signing the will, the testator appeared to be of sound mind and memory and competent to make a last will and testament. If a state authorizes a self-proving affidavit and if the will includes a self-proving affidavit, then the witnesses to the will are not required to be present and give testimony during the will contest.
• If, at the conclusion of the will contest, the will is ruled invalid for any reason, then the testator may be deemed to have died intestate (i.e., without a will). unless a prior will is then admitted as a valid will. If the testator is deemed to have died intestate, then the court will appoint an administrator to settle the estate and any property remaining after the payment of all debts of the decedent, all administrative costs, and all estate and inheritance taxes, will be distributed to the decedent’s heirs in accordance with the “intestacy laws” (often referred to as the laws of “descent and distribution”) of that state.

Now that you know what happens with a will, maybe you should really consider drawing up a living trust and avoiding the who probate process altogether… even though you won’t be there to enjoy it yourself!

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Carrie Stone