Do I Have to File a Will?

In short, yes.

We file a Will to make sure that the document truly contains the person’s legally enforceable wishes. Filing the Will ensures that the Will is reviewed by a judge, and all of the legal heirs are given the opportunity to review the Will and object if they think the Will is not valid.

As it says in our firm’s name, we do both estate planning (drafting Wills, Trusts, etc.) and probate (estate administration). Both groups of clients ask slightly different but related questions.

Probate clients will ask, after someone has passed, “Do I need to file their Will in order to deal with their estate?” The short answer is yes, because only the probate court can actually appoint an Executor. The Will itself does not give someone the legal authority over the decedent’s assets. Only the court can do that.

Until a Will is filed for probate and the probate court appoints an Executor, there is no person who can access bank accounts, sell real property, hold an estate sale, pay claims, distribute furniture or personal items, etc. Failing to file a Will for probate puts all of the estate assets in limbo until the court appoints an Executor.

Estate planning clients then wonder, “If the court is going to be involved in my estate, then why make a Will in the first place?”

The answer is that the purpose of a Will is not to remove the need for probate, it exists to make probate do what you want.

Without a Will, state law determines who receives assets from your estate, how much these people receive, and who can manage your estate. A Will gives you the power over these things. A Will lets you choose who gets something and what they receive, who gets nothing, and who is the person you want to carry out these instructions.