Wills & Public Information

It's advisable to write a last will and testament providing for the distribution of your estate upon your death.

Last will and testaments become public documents as soon as they are filed with a probate court. Because the will is filed with a court, which is a taxpayer-funded entity, the court must make the will accessible to anyone who wants to see it. If the deceased had unpaid debt, creditors may examine the will in order to legally challenge it. Likewise, relatives and others who have an interest in the deceased's estate may also look at the document.

Executor

Typically, the person who prepares the will (the testator) appoints an executor to file the will with a probate court after he dies and to organize a judge's reading of the last will and testament. The executor is responsible for contacting those named in the will and distributing the assets after the will is read. Essentially, the executor is responsible for carrying out the deceased's last wishes. The executor may choose to publish a legal notice in newspapers announcing the death and noting the deadline for challenging the will and making a claim against the estate.

What It Does

A will is a formal, enforceable contract that can be written by anyone who is 18 or older and is of sound mind. Wills dictate how the money and assets of the deceased should be divided among relatives and friends. If the testator has minor children, she can declare who should have custody of her children should she die before the children are 18. Without a will, the court must use its own judgment and the state's laws of intestate succession in distributing the deceased person's assets. The probate court clerk keeps track of filing dates and maintains a schedule of when the wills will be read, and is responsible for making that information available to anyone who asks for it. Probate court matters pertaining to wills are often published in newspaper legal notices as well.

Oral Wills

According to FindLaw.com, there are rare cases in which wills can be approved even if the testator did not complete a written will. Oral wills are spoken, not written down. Few states permit these, however, and probate courts in states that do allow them may stipulate that such a will can only be validated if the testator made it during a last illness, and only for personal property that did not have a large value. Obviously, such a will has no original written form for the public to inspect, but other court documents concerning the case are public record.

Specifics

Probate laws vary by state, but there are some universal requirements for will documents, according to lawyer Alfred M. Abel. Wills should bear the testator's name, address and other identifying information. They should note the name of the testator's spouse and when they were married. They should include the names of all children, the names of the executor and one alternate executor, and instructions for distributing the estate after taxes, debts and other bills have been taken care of. Burial instructions can also be included.

Challenges

Challenges to the will must be filed in probate court and are also public record. According to attorney Alfred M. Abel, challenges can be made by someone who is named in the will, or by someone who believes she should have been named in the will. Challengers cannot base their claims on fairness. Instead, the law limits the grounds for contesting a will to a few reasons. Challengers can claim that the will is forged; that the testator wasn't of sound mind when the document was created; that the will did not meet state requirements; that someone improperly influenced the testator; or that the choice of executor is unsuitable. If the court invalidates the will, fully or in part, the judge's decision is also a matter of public record. .

References

• FindLaw: Kinds of wills