Sometimes clients ask about their duties to file a decedent’s Last Will and Testament with the court. Many are concerned with timing deadlines. States tend to take one of three approaches on this issue:
- No Timeline. Some states don’t require you to file the Will with the court unless you intend to admit it to probate. For example, Mississippi doesn’t have a timeline for submitting a Will with the court or a statute of limitations on when a Will can be admitted to probate. In one case, a Will was first filed with the court and admitted to probate 23 years after the decedent’s death.
- Specific Timeline. Other states have clear deadlines of when the will should be filed with the court. For example, under Florida law, the custodian of the Will must file the original with the Clerk of the Circuit Court’s Office in the county where the decedent had resided within 10 days after being informed of testator’s death.
- Vague/ASAP Deadline. Other states require the will to be filed immediately or as soon as possible. Under Illinois law, for example, “[i]mmediately upon the death of the testator any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county.”
As a practical matter, the states that have deadlines don’t always enforce them. The real purpose of these deadlines is to force someone with possession of a Last Will and Testament to turn it over. This can happen when the Will makes a disposition that a person doesn’t like. Instead of having the property transferred to someone else, the person who possesses the Will just decided to hide it.
Hiding a Will is a crime in many states. The Illinois statute, for example, imposes criminal penalties on anyone who “wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for a period of 30 days after the death of the testator.”
Also, keep in mind that these statutes refer to any Last Will and Testament that the decedent may have left behind. It is not uncommon for people to update their Wills from time to time. Although a properly-drafted Will revokes all prior Wills, sometimes the testator will hang on to both original Wills. In that case, both Wills should be filed with the court. It is not up to the person holding the Will to decide which one is valid.