What are the procedures for the last will and testament once someone dies? After it’s located, it should be given to the estate’s attorney. The attorney sends copies of the will to anyone who may have an interest in it. Obviously, the person named as executor or personal representative is entitled to a copy because that person is in charge of applying for probate, managing the decedent’s property and making sure the instructions in the will get carried out.
The attorney will send a copy to beneficiaries. If minor children or incapacitated individuals are beneficiaries, their guardians receive a copy of the will. In some states, anyone who would have inherited if there were no will is entitled to a copy as well.
If there’s any possibility of a legal challenge to the will, the attorney probably will send a copy to any legal heirs, close relatives or previous beneficiaries who aren’t included in the will so they have notice. This limits the time frame for filings to contest the document.
Then there’s the estate accountant; what if the estate is taxable? The IRS may get a copy, too. If the will funds a revocable trust, the successor trustee of the trust gets a copy also. Once the will is probated, it’s available to the public, and anyone can read it.
In fact, trusts solve two key problems at this stage: they’re generally private, while wills are usually available to the general public after a person’s death. Also, trusts tend to avoid the often messy and expensive probate process.
Knowing the details
These are just the basics. Below is a more detailed list of who gets wills. It can get complex, so if you’re an executor, consult an attorney.
- The person or entity named to serve as personal representative. Also called the executor, if male, or the executrix, if female. This person is solely responsible for settling the estate and needs to review the will to understand who the beneficiaries are and any special restrictions or instructions about their shares of the estate. The will lists all powers to settle the estate and what type of compensation for carrying out the fiduciary responsibilities there are.
- Beneficiaries named in the will. They are entitled to receive a copy of the will so they can understand what they will be getting, as well as how and when they’ll be receiving it.
- The natural or legal guardian of a beneficiary who is a minor.
- Heirs at law and prior beneficiaries. If the estate attorney anticipates a contest to challenge the will’s validity, a copy will be sent to the testator’s heirs at law who aren’t named in the will. The same goes for the beneficiaries who were named in a prior will, thus limiting to a specific period the amount of time disinherited beneficiaries have to file a contest.
- The successor trustee of a revocable living trust. If the last will and testament is a pour-over will, meaning that the testator had a revocable living trust that wasn’t completely funded prior to death, and a probate proceeding is required, then the successor trustee of the trust must receive a copy of the pour-over will. This will allow the personal representative and the successor trustee to receive copies of the pour-over will.
- IRS and/or state taxing authority. If the estate is subject to federal and/or state estate taxes, then a copy of the last will and testament must be submitted to the IRS and/or the applicable state taxing authority along with the estate tax return.
- Wills are public record. Once a last will and testament is filed for probate with the appropriate state court, it becomes a public court record for anyone to see and read. In certain circumstances, such as if the testator is famous, the beneficiaries can request that the probate judge seal the probate court records to prevent the general public from viewing the will and other probate documents. Probate judges grant this request only in rare occasions, like with the Michael Jackson estate; his court records have been sealed.
If you have any questions, let an estate planning lawyer, like from Bott & Associates, LTD., know. They can help with the probate process–or better yet, show you how a properly set up trust can take care of your estate planning needs.