After Someone Dies: When Must a Last Will and Testament be Filed with Probate Court? And What Happens if Someone Refuses to File the Last Will and Testament?

After death, a Will must be filed with Probate Court if it conveys an interest in real or personal property or has been declared valid by a Probate judge. If an action to have a Will declared valid prior to death was brought and successful, than the judge who made the declaration must bring the Will before the Court after the individual’s death. An executor or heir may inform the judge of the individual’s death or the judge may learn on his own.

Generally, named executors or heirs readily file Wills with the Court. Sometimes though, the named heirs are not the individuals in possession of the Will or an heir or other individual will withhold a Will because he is unhappy with the terms.

What can be done if someone in possession of a Will refuses to file it with Probate Court? A named executor or an heir may ask the Probate Court to Order the individual in possession of the Will to produce it for the Court. If the individual in possession does not comply with the Court Order to produce the Will, he may be committed to the county jail or kept in custody until the Will is produced. Any party injured by the concealment of the Will may also sue for damages. Without a Court Order to produce a Will, any beneficiary named in the Will who knows of the existence of the Will for one year after death and has the power to control it and without reasonable cause intentionally conceals or withholds it or neglects or refuses to file it with the Court loses all property rights conveyed in the Will.

Sometimes a named executor or heir will be advised to wait out the six (6) month statute of limitations on creditor claims prior to filing the Will and opening the Estate. Heirs named in and in possession of a Will need to mindful, however, of the severe penalty for those who withhold a Will for more than a year.

Those with questions on filing a Last Will and Testament with Probate Court or pursuing an individual withholding a Will should contact a Probate Lawyer.

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