May I file or deposit my Will with the Court before I die?
Full Question:
May I file or deposit my Will with the Court before I die?
12/28/2016 |
Category: Wills and Es... » Filing Will ... |
State: ALL |
#28969
Answer:
Please be sure to check your State laws for any updates or changes.
Alabama
§ 43-8-167. Mode of proving will generally.
(a) Wills offered for probate, except nuncupative wills, must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.
(b) If none of the subscribing witnesses to such will are produced, their insanity, death, subsequent incompetency or absence from the state must be satisfactorily shown before proof of the handwriting of the testator, or any of the subscribing witnesses, can be received; in addition to the methods already provided, the will of a person serving in the armed forces of the United States, executed while such person is in the actual service of the United States, or the will of a seaman, executed while such seaman was at sea, shall be admitted to probate when either or all of the subscribing witnesses is out of the state at the time said will is offered for probate, or when the places of address of such witness or witnesses are unknown upon the oath of at least three credible witnesses, that the signature to said will is in the handwriting of the person whose will it purports to be. Such will so proven shall be effective to devise real property as well as to bequeath personal property of all kinds.
§ 43-8-171. Admission of will in evidence.
Every will, so proved or endorsed, may be read in evidence in any court of the state, without further proof thereof; and the record of such will and proof or a transcript thereof, certified by the judge of probate, must be received as evidence to the same extent as if the original will was produced, and the same proof made.
§ 43-8-270. Duty of custodian of will after death of testator; liability.
After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who wilfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to the penalty for contempt of court.
Alaska
13.12.515. Deposit of will with court in testator's lifetime.
A will may be deposited by the testator or the testator's agent with a court for safekeeping, under rules of the court. During the testator's lifetime, the will must be kept confidential. During the testator's lifetime, a deposited will shall be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be kept confidential and on deposit after the examination.
Arizona
14-2516. Custodian of will; duties; liability
A. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate or, if none is known, to an appropriate court.
B. A person who wilfully fails to deliver a will as required by this section is liable to any person aggrieved for any damages caused by this failure.
C. A person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.
Arkansas
28-25-108. Deposit of will with court in testator's lifetime — Disposition.
(a) DEPOSIT OF WILL. A will may be deposited by the person making it, or by some person for him or her, with the circuit court of the county of his or her residence, to be safely kept until delivered or disposed of as provided in this section. On being paid the fee of two dollars ($2.00), the clerk of the court shall receive and keep the will and give a certificate of deposit for it.
(b) How ENCLOSED. Every will intended to be deposited as provided in subsection (a) of this section shall be enclosed in a sealed wrapper, which shall have endorsed thereon "Will of," followed by the name of the testator. The clerk of the court shall endorse thereon the day when and the person by whom it was delivered. The wrapper shall also be endorsed with the name of the person to whom the will is to be delivered after the death of the testator. It shall not be opened or read until delivered to a person entitled to receive it, or otherwise disposed of as provided in this section.
(c) To WHOM DELIVERED.
(1) During the lifetime of the testator, the will shall be delivered only to him or her, or to some person authorized by him or her by an order in writing duly signed by him or her and acknowledged before an officer authorized to administer oaths or attested by the signatures of two (2) persons competent to witness the will.
(2) After the testator's death, the clerk shall deliver the will to the person named in the endorsement on the wrapper of the will if that person requests the will either in person or in writing.
(3) If the request under subdivision (c)(2) of this section is in person, the clerk shall require proof of identification before delivering the will.
(4) If the request under subdivision (c)(2) of this section is in writing, the clerk shall require an affidavit of the person requesting the will in substantially the following form:
"STATE OF ARKANSAS
COUNTY OF ___________
BE IT KNOWN THAT on this ____ day of ____, ____, before me, the undersigned notary, personally came and appeared:
___________________________________________________________
who after being duly sworn by me, a notary, deposed and stated his or her name and address.
SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF ____, ____
___________________________________________________________
___________________________________________________________
NOTARY PUBLIC"
(d) WHEN WILL TO BE OPENED.
(1) If the will is not delivered to a person named in the endorsement on the wrapper, it shall be publicly opened in the court within thirty (30) days after notice of the testator's death, and be retained by the court until offered for probate.
(2) Notice shall be given to the executor, if any, named therein and to such other persons as the court may designate.
(3) If the proper venue is in another court, the will shall be transmitted to that court, but, before such a transmission, a true copy shall be made and retained in the court in which the will was deposited.
History. Acts 1949, No. 140, § 31; 1983, No. 898, § 2; Acts 2007, No. 652, § 1.
A.S.A. 1947, §§ 22-523, 60-415.
California
710. If a document is deposited with an attorney, the attorney, and a successor attorney that accepts transfer of the document, shall
use ordinary care for preservation of the document on and after July 1, 1994, whether or not consideration is given, and shall hold the
document in a safe, vault, safe deposit box, or other secure place where it will be reasonably protected against loss or destruction.
8220. Unless there is a contest of a will:
(a) The will may be proved on the evidence of one of the
subscribing witnesses only, if the evidence shows that the will was
executed in all particulars as prescribed by law.
(b) Evidence of execution of a will may be received by an
affidavit of a subscribing witness to which there is attached a
photographic copy of the will, or by an affidavit in the original
will that includes or incorporates the attestation clause.
(c) If no subscribing witness resides in the county, but the
deposition of a witness can be taken elsewhere, the court may direct
the deposition to be taken. On the examination, the court may
authorize a photographic copy of the will to be made and presented to
the witness, and the witness may be asked the same questions with
respect to the photographic copy as if the original will were
present.
8221. If no subscribing witness is available as a witness within
the meaning of Section 240 of the Evidence Code, the court may, if
the will on its face conforms to all requirements of law, permit
proof of the will by proof of the handwriting of the testator and one
of the following:
(a) Proof of the handwriting of any one subscribing witness.
(b) Receipt in evidence of one of the following documents reciting
facts showing due execution of the will:
(1) A writing in the will bearing the signatures of all
subscribing witnesses.
(2) An affidavit of a person with personal knowledge of the
circumstances of the execution.
8202. If the will of a person who was domiciled in this state at
the time of death is detained in a court of any other state or
country and cannot be produced for probate in this state, a certified
photographic copy of the will may be admitted to probate in this
state with the same force and effect as the original will. The same
proof shall be required as if the original will were produced.
Colorado
15-11-515. Deposit of will with court in testator's lifetime.
A will may be deposited by the testator or the testator's agent with any court for safekeeping, under rules of the court. The will shall be sealed and kept confidential. During the testator's lifetime, a deposited will shall be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible and to ensure that it will be resealed and kept on deposit after the examination.
Source: L. 94: Entire part R&RE, p. 1003, § 3, effective July 1, 1995. L. 96: Entire section amended, p. 658, § 8, effective July 1.
15-11-503. Writings intended as wills.
(1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
(a) The decedent's will;
(b) A partial or complete revocation of the will;
(c) An addition to or an alteration of the will; or
(d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will.
(2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse.
(3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide.
(4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title.
Source: L. 94: Entire part R&RE, p. 998, § 3, effective July 1, 1995. L. 2001: Entire section amended, p. 886, § 2, effective June 1. L. 2010: (4) added, (SB 10-199), ch. 374, p. 1750, § 10, effective July 1.
Editor's note: (1) Section 25 of chapter 374, Session Laws of Colorado 2010, provides that the act adding subsection (4):
(a) Applies to governing instruments executed by decedents who die on or after July 1, 2010; and any proceeding in court then pending or thereafter commenced regardless of the time of death of the decedent except to the extent that, in the opinion of the court, the former statute should be made applicable in a particular case in the interest of justice or because of infeasibility of application of a provision of the act; and
(b) Does not apply to an action performed before July 1, 2010, in any proceeding; an accrued right; a right that is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 2010; or a provision of a governing instrument that was executed before July 1, 2010, and includes a clear indication of a contrary intent.
15-12-402. Formal testacy or appointment proceedings — petition — contents.
(1) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will shall:
(a) Request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(b) Contain the statements required for informal applications as stated in section 15-12-301(2) and the statements required by section 15-12-301(3); and
(c) State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
(2) If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.
(3) If a will has been lost or destroyed, or for any other reason is unavailable, and the fact of the execution thereof is established, as herein provided, and the contents thereof are likewise established to the satisfaction of the court, and the court is satisfied that the will has not been revoked by the testator, the court may admit the same to probate and record, as in other cases. In every such case the order admitting such will to probate shall set forth the contents of the will at length, and the names of the witnesses by whom the same was proved, and such order shall be recorded in the record of wills.
(4) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by section 15-12-301(2) and (5), and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by section 15-12-301(5)(b) may be omitted.
Connecticut
15-12-402. Formal testacy or appointment proceedings — petition — contents.
(1) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will shall:
(a) Request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(b) Contain the statements required for informal applications as stated in section 15-12-301(2) and the statements required by section 15-12-301(3); and
(c) State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
(2) If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.
(3) If a will has been lost or destroyed, or for any other reason is unavailable, and the fact of the execution thereof is established, as herein provided, and the contents thereof are likewise established to the satisfaction of the court, and the court is satisfied that the will has not been revoked by the testator, the court may admit the same to probate and record, as in other cases. In every such case the order admitting such will to probate shall set forth the contents of the will at length, and the names of the witnesses by whom the same was proved, and such order shall be recorded in the record of wills.
(4) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by section 15-12-301(2) and (5), and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by section 15-12-301(5)(b) may be omitted.
Delaware
12 Del. C. § 2513. Deposit of original wills with Register in New Castle County.
(a) An original will may be deposited by any testator, testatrix, attorney-in-fact or attorney-at-law for safekeeping in the office of the Register of Wills for New Castle County upon payment of a fee of $5.
(b) Upon receipt of said will, the Register shall:
(1) Give to such testator, testatrix, attorney-in-fact or attorney-at-law a receipt for such deposit;
(2) Place the will in an envelope and seal it securely in the presence of the testator, testatrix, attorney-in-fact or attorney-at-law;
(3) Number the envelope and indicate thereon the name of the testator or testatrix;
(4) Record the date on which it is lodged;
(5) List the name of the person or persons whom the testator or testatrix wishes to serve as personal representative upon testator's or testatrix's death; and
(6) Index the same alphabetically in a permanent index kept for that purpose.
(c) The Register shall carefully preserve the envelope containing the will unopened unless it is returned to the testator, testatrix, attorney-in-fact or attorney-at-law during the lifetime of the testator or testatrix. The testator or testatrix may examine the contents of the envelope in the Register of Wills' office and return the same for a fee of $1. Should such will be returned to the testator or testatrix during testator's or testatrix's lifetime, removed from the office and then redeposited with the Register, it shall be considered as a new lodging under the provisions of this section.
(d) Upon receipt of notice of the death of the testator or testatrix or by order of the court, the Register shall open the will and place the will in its pending file to await probate. While awaiting probate the will may be reviewed by any person entitled to offer it for probate, authorized by court order or named in the will as a beneficiary, trustee or guardian. Copies of the will shall be given to the executor, executrix, beneficiary, trustee, guardian, at their request or upon court order. The person or party making the request shall be responsible for reasonable copying charges. Except as provided herein, no other person is permitted to receive a copy of a will.
(e) The Register, upon receipt of notice of death and an affidavit of the proposed personal representative which alleges that the decedent was not a resident of New Castle County at the time of the decedent's death, shall deliver the will to the probate officer or Register of Wills for the county or state where the decedent is alleged to have resided at the decedent's death.
(f) Any attorney-at-law, bank or trust company, upon holding a will lodged with the attorney-at-law, bank or trust company for safekeeping by a client for 7 years or more and having no knowledge of whether the said client is alive or dead after such time, may lodge such will with the Register as provided in subsections (a)-(e) of this section for which the Register shall be paid a fee of $5 for such lodging, indexing and preserving.
(g) The filing of a will with the Register shall not create any presumption as to the authenticity of the document, the signatures on the will or its admissibility to probate.
(h) The fee to be paid the Register may be increased or reduced by the New Castle County Council at its election.
(i) The Register of Wills shall not be liable for the loss of any document.
12 Del. C. § 1302. Proving will.
(a) A will shall be proved before the Register of Wills of the county in which the testator was domiciled at the time of death. If the testator was not domiciled in this State, it may be proved before the Register of any county in this State wherein there are any goods or chattels, rights or credits, or lands or tenements of the deceased.
(b) To be effective to prove a transfer of any property or to nominate an executor, a will must be declared to be valid by admission to probate.
District of Columbia
§ 20-304. Petition for probate.
(a) General. — The petition for probate shall contain all knowledge or information of the petitioner with respect to:
(1) the name, domicile, and place and date of death of the decedent;
(2) the petitioner's name, address, age, citizenship, relationship to the decedent, interest in the estate, if any, and legal disability, if any;
(3) facts necessary to confer jurisdiction upon the Court;
(4) any other proceeding filed elsewhere regarding the decedent's estate;
(5) the character, location, and estimated value of the decedent's real and personal property and the total estimated debts and funeral expenses of the decedent;
(6) the names and addresses of all interested persons, and the names of all persons who are witnesses to any will referred to in subsection (c); and
(7) whether the decedent died intestate or testate with disclosure of further information pursuant to subsection (b) or (c), as appropriate.
(b) Intestate. — If the decedent died intestate, the petition shall state that a diligent search for a will has been made.
(c) Testate. — If the decedent died testate, the petitioner shall: (1) exhibit the original of the will with the petition, or exhibit a copy of the will if the original has already been filed; and (2) state whether the petitioner knows of any later will. If the petitioner is filing or has filed the original of the will, the petition shall state the manner in which the petitioner obtained the original of the will.
(d) Explanation for lack of information. — The petition shall state the reasons why any information required by subsection (a) cannot be furnished by the petitioner.
(e) Request for abbreviated or standard probate or small estates proceeding. — The petition shall indicate whether the petitioner requests an abbreviated probate, small estates or standard probate proceeding.
(f) Request for court action. — The petition may contain, as appropriate, and shall (without the need for the filing of any complaint) be sufficient to obtain the Court's action on, a request for one or more of the following:
(1) the admission to probate of any will exhibited with the petition;
(2) an order directing witnesses to an alleged will to appear and give testimony regarding its execution;
(3) an order requiring any person alleged to have custody of a will to deliver it to the Court;
(4) an order directing any interested person to show cause why the provisions of any lost or destroyed will should not be admitted to probate as expressed in the petition;
(5) a finding that the decedent died intestate;
(6) a request for the appointment of a supervised personal representative if the requirements of section 20-402 are met and supervision is desired, or for the appointment of an unsupervised personal representative in other cases and, in each case, for the issuance of appropriate letters;
(7) any other relief that the petitioner may deem appropriate.
Florida
732.901 Production of wills.
(1) The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. The custodian must supply the testator's date of death or social security number to the clerk upon deposit.
(2) Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will as provided in subsection (1). All costs, damages, and a reasonable attorney's fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.
History. — s. 1, ch. 74-106; s. 44, ch. 75-220; s. 18, ch. 92-200; s. 972, ch. 97-102; s. 59, ch. 2001-226.
733.201 Proof of wills.
(1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof.
(2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.
(3) If it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent.
733.207 Establishment and probate of lost or destroyed will.
Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.
Georgia
53-4-46. (a) A presumption of intent to revoke arises if the original of a. . . .
(a) A presumption of intent to revoke arises if the original of a testator's will cannot be found to probate.
(b) A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke set forth in subsection (a) of this Code section is rebutted by a preponderance of the evidence.
53-5-24. When it appears that a will cannot be proved as otherwise provided by. . . .
When it appears that a will cannot be proved as otherwise provided by law because at the time the will is offered for probate one or more of the subscribing witnesses to the will is dead or mentally or physically incapable of testifying or otherwise inaccessible, the court may admit the will to probate in common or solemn form upon the testimony in person or by affidavit or by deposition of at least two credible disinterested witnesses that the signature to the will is that of the individual whose will it purports to be or upon other sufficient proof of such signature. This Code section shall not preclude the court, in its discretion, from requiring, in addition, the testimony in person or by deposition of any available subscribing witness or proof of such other pertinent facts and circumstances as the court may deem necessary to admit the will to probate.
53-4-46. (a) A presumption of intent to revoke arises if the original of a. . . .
(a) A presumption of intent to revoke arises if the original of a testator's will cannot be found to probate.
(b) A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke set forth in subsection (a) of this Code section is rebutted by a preponderance of the evidence.
Hawaii
Nothing applicable
Idaho
15-2-1001. Will registry. —
The secretary of state shall create and maintain a will registry. The information contained in such registry shall include: the full name of the person making the will; the date the will was made; and sufficient identification of the location of the will at the time of registration. The method of registration shall be on a form required by the secretary of state. The fee for registration shall be ten dollars ($10.00) which shall be deposited by the secretary of state in the general fund. The secretary of state shall not be liable in any way for the accuracy of the information contained in the registry. The existence, or nonexistence, of a registration for a particular will shall not be considered as an evidentiary fact in any proceeding relating to such will. The failure to file information about a will in the registry shall not be a factor in the validity of the will, nor shall the failure to file be considered as malpractice on the part of any attorney as to the will. Only interested persons as defined in section 15-1-201, Idaho Code, or their attorneys may search the records contained herein. The secretary of state shall not be liable for the accuracy of the representation of the interested person or the interested person's attorney.
History.
I.C., § 15-2-1001, as added by 2000, ch. 181, § 1, p. 450.
15-3-402. Formal testacy or appointment proceedings — Petition — Contents. —
(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing and contain further statements as indicated in this section. A petition for formal probate of a will:
(1) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(2) contains the statements required for informal applications as stated in subsection (a)(1) through (5) of section 15-3-301 of this code, the statements required by subsection (b)(1) and (2) of section 15-3-301 of this code; and
(3) states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
(b) If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.
(c) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by subsection[s] (a) and (d) of section 15-3-301 of this code and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by subsection (d)(2) of section 15-3-301 of this code may be omitted.
Illinois
755 ILCS 5/6-4 (from Ch. 110 1/2, par. 6-4)
Sec. 6-4. Admission of will to probate — testimony or affidavit of witnesses.) (a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.
(b) The statements of a witness to prove the will under subsection 6-4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.
Indiana
IC 29-1-7-3.1 (a) This section applies whether it is:
(a) This section applies whether it is:
(1) known; or
(2) unknown;
whether a testator is living.
(b) As used in this section, "depositor" refers to a person who deposits a will with the circuit court clerk under this section.
(c) As used in this section, "will" refers to an original:
(1) will;
(2) codicil; or
(3) will and codicil.
(d) A person may deposit a will with the circuit court clerk of the county in which the testator resided when the testator executed the will. The circuit court clerk may assume, without inquiring into the facts, that the depositor's representation is accurate as to the county where the testator resided when the testator executed the will. Except as provided in subsection (e), the circuit court clerk shall collect a fee of twenty-five dollars ($25) for the deposit of the will. The circuit court clerk shall deposit the fee in the clerk's record perpetuation fund under IC 33-37-5-2.
(e) The circuit court:
(1) shall waive the fee under subsection (d) if:
(A) a court with probate jurisdiction of the county where the will is deposited certifies that the depositor deposits the will:
(i) as a participant; or
(ii) for a participant;
in a program of the supreme court, including the Judges and Lawyers Assistance Program established under Rule 31 of the supreme court Rules for Admission to the Bar and the Discipline of Attorneys; and
(B) the certification described in clause (A) accompanies the will when the will is deposited; and
(2) may waive the fee under subsection (d) if the depositor is no longer practicing law.
(f) Upon receipt of a will under this section, the circuit court clerk shall:
(1) provide the depositor with a receipt for the will;
(2) place the will in an envelope and seal the envelope securely in the presence of the depositor;
(3) designate on the envelope the:
(A) date of deposit;
(B) name of the testator; and
(C) name and address of the depositor; and
(4) index the will alphabetically by the name of the testator. An envelope and will deposited under this section is not a public record under IC 5-14-3.
(g) During the testator's lifetime, the circuit court clerk shall:
(1) keep the envelope containing the will sealed; and
(2) deliver the envelope to:
(A) the testator; or
(B) a person authorized, in a writing signed by the testator, to receive the envelope.
(h) If the circuit court clerk has custody of the will after the death of the testator, the circuit court clerk may deliver the will to the court that has jurisdiction of the administration of the decedent's estate as set forth in section 3 of this chapter.
(i) A circuit court clerk may destroy a will deposited under this section if:
(1) the circuit court clerk has not received notice of the death of the testator; and
(2) at least one hundred (100) years have passed since the date the will was deposited.
(j) A depositor that complies with this section is immune from civil liability for depositing the will.
[As added by P.L. 238-2005, SEC. 9.]
Iowa
633.286 Deposit of will with clerk.
The clerk shall maintain a file for the safekeeping of wills. There shall be placed therein wills deposited with the clerk by living testators or by persons on their behalf, and wills of deceased testators not accompanied by petitions for the probate thereof, when deposited with the clerk by persons having custody thereof as provided in section 633.285.
Kansas
59-2228. Hearing for probate of lost will.
A lost or destroyed will may be established if its provisions are clearly and distinctly proved. When such will is established the provisions thereof shall be distinctly stated, certified by the court, and filed and recorded. Letters shall issue thereon as in the case of other wills.
Kentucky
394.110. Will may be deposited with clerk for safekeeping.
A will may be deposited by the person making it, or anyone for him, with the county clerk of the county of his residence for safekeeping, upon payment of a fee as provided for in KRS 64.012 to the clerk. The clerk shall receive, keep, and deliver the will according to the directions on a sealed envelope. If there are no such directions, or the party entitled does not apply, the will shall be handed to and opened by the district court, after the death of the testator, and there retained for probate.
394.235. Proof of will where witnesses unavailable.
When it appears to the court that a will cannot be proven as otherwise provided by law because one or more or all of the subscribing witnesses to the will, at the time the will is offered for probate, are serving in or present with the armed forces of the United States or as merchant seamen, or are dead or mentally or physically incapable of testifying or otherwise unavailable, the court may admit the will to probate upon the testimony in person or by deposition of at least two (2) credible disinterested witnesses that the signature to the will is in the handwriting of the person whose will it purports to be, or upon other sufficient proof of such handwriting. The foregoing provision shall not preclude the court, in its discretion, from requiring in addition, proof of such other pertinent facts and circumstances as the court may deem necessary to admit the will to probate.
Louisiana
Art. 2852. Documents submitted with petition for probate
The petitioner shall submit with his petition evidence of the death of the decedent, and of all other facts necessary to establish the jurisdiction of the court.
If the testament is one other than a statutory testament, a notarial testament, or a nuncupative testament by public act, and is in the possession of the petitioner, he shall present it to the court, and pray that it be probated and executed.
Art. 2886. Probate of nuncupative testament by private act; mystic testament, when witnesses dead, absent, or incapacitated
A. If some of the witnesses to the nuncupative testament by private act, or to the act of superscription of the mystic testament, are dead, absent from the state, incapacitated, or cannot be located, so that it is not possible to procure the prescribed number of witnesses to prove the testament, it may be proved by the testimony of those witnesses then residing in the state and available.
B. If the notary and all of the subscribing witnesses are dead, absent from the state, incapacitated, or cannot be located, the testament may be proved by the testimony of two credible witnesses who recognize the signature of the testator, or of the notary before whom the act of superscription of the mystic testament was passed, or the signatures of two of the witnesses to the nuncupative testament by private act, or to the act of superscription of the mystic testament.
C. A person's testimony for the purpose of this Article may be given in the form of an affidavit executed after the death of the testator, unless the court in its discretion requires the person to appear and testify orally. All affidavits accepted by the court in lieu of oral testimony shall be filed in the probate proceedings. This Paragraph does not apply to testimony with respect to the genuineness of a will that is judicially attacked.
Art. 2903. Proponent bears burden of proof
At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law.
Maine
18-A M.R.S.A. § 2-901. Disposition of will deposited with court
A will deposited for safekeeping with the court in the office of the register of probate before September 19, 1997 may be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible and to ensure that it will be resealed and left on deposit after the examination. Upon being informed of the testator's death, the court shall notify any person designated to receive the will and deliver it to that designated person on request; or the court may deliver the will to the appropriate court. The court may not accept a will for safekeeping after September 19, 1997.
Maryland
§ 4-201 EST. & TRUSTS Deposit of will with register of county; requirements.
(a) Register to receive will for safekeeping; receipt. — A will may be deposited by the testator, or by his agent, for safekeeping with the register of the county where the testator resides. The register shall give a receipt for it, upon the payment of the required fee.
(b) How enclosed. — The will shall be enclosed in a sealed wrapper, which shall have endorsed on it "Will of," followed by the name of the testator, his address, and his social security number, if available. The register shall endorse on it the day when and the person from whom it was received. The will is not to be delivered or opened except as provided in this subtitle.
(c) To whom delivered. — During the lifetime of the testator a deposited will may be delivered only to him, or to a person authorized by him in writing to receive it.
(d) When will to be opened. — The will shall be opened by the register after being informed of the death of the testator. The register shall notify the personal representative named in the will, and any other person the register considers appropriate, that the will is on deposit with the register. The will shall be retained by the register as a deposited will until offered for probate. The register shall keep a photographic copy of a will transmitted elsewhere for probate.
§ 5-801 EST. & TRUSTS Obtaining a copy of executed will.
(a) Generally. — An interested person may file a petition for the admission of a copy of an executed will in accordance with this subtitle.
(b) Notice not required. — Notice to interested persons of the filing of the petition is not required.
§ 5-802 EST. & TRUSTS Filing.
A petition for admission of a copy of a will may be filed with the court at any time before administrative or judicial probate if:
(1) The original executed will is alleged to be lost or destroyed;
(2) A duplicate reproduction of the original executed will, evidencing a copy of the original signatures of the decedent and the witnesses, is offered for admission; and
(3) All the heirs at law and legatees named in the offered will execute a consent in the manner set forth in § 5-803 of this subtitle.
§ 5-803 EST. & TRUSTS Form of consent.
The consent required under § 5-802 of this subtitle shall be in substantially the following form:
CONSENT TO PROBATE OF COPY OF EXECUTED
LAST WILL AND TESTAMENT
The undersigned ____________________________________ and
____________________________________, being all the heirs at
law of the decedent and all the legatees named in the will
executed by the decedent on ____________________, hereby
consent to the probate of a copy of that executed will, it
having been determined, after an extensive search of the
decedent's personal records, that an original of the will
cannot be located. By signing this Consent each of the
undersigned affirms that it is his or her belief that the
will executed by the decedent on ____________________, is the
last valid will executed by the decedent and was not revoked
and that the copy of the will, as submitted with the
petition for its admission, represents a true and correct
copy of the will.
We affirm under the penalties of perjury that the facts set
forth in this Consent are true and correct to the best of
our knowledge, information, and belief.
DATE SIGNATURE PRINT NAME AND RELATION-SHIP
_____ ______________ _____________
_____ ______________ _____________
_____________
Attorney
__________________
__________________
Address
__________________
Telephone Number
Massachusetts
G.L.c. 190B, § 2-515. Deposit of will with court in testator's lifetime
Section 2-515. [Deposit of Will With Court in Testator's Lifetime.]
A will may be deposited by the testator or the testator's agent with any court for safekeeping, under rules of the court. The will shall be sealed and kept confidential. During the testator's lifetime, a deposited will shall be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A guardian of the estate or conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator's death, the court shall notify any person designated to receive the will and deliver it to that person on request; or the court may deliver the will to the appropriate court.
G.L.c. 190B, § 3-402. Formal testacy or appointment proceedings; petition; contents
Section 3-402. [Formal Testacy or Appointment Proceedings; Petition; Contents.]
(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, shall be directed to the court, request a judicial order and contain further statements as indicated in this section. A petition for formal probate of a will
(1) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs,
(2) contains the statements required for informal petitions as stated in section 3-301(a)(1), the statements required by subparagraphs (ii) and (iii) of section 3-301(a)(2), and
(3) states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also shall state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.
(b) If a death certificate issued by a public officer is not filed with the petition, the court may direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable.
(c) A petition for adjudication of intestacy and appointment of a personal representative in intestacy shall request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by clauses (1) and (4) of section 3-301(a) and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of a personal representative, in which case, the statements required by subparagraph (ii) of section 3-301(a)(4) above may be omitted.
Michigan
700.2515 Deposit of will with court in testator's lifetime.
Sec. 2515.
(1) A will in writing that is enclosed in a sealed wrapper, on which is endorsed the testator's name, place of residence, and social security number or state of Michigan driver's license number, if any, and the day on which and the name of the person by whom it is delivered, may be deposited by the individual making the will, or by a person for him or her, with the court in the county where the testator resides. The court shall receive and safely keep the will and give a certificate of the deposit of the will. For this service, the court shall charge and collect a fee as provided by supreme court rule or the revised judicature act of 1961.
(2) During the lifetime of the testator, the will shall be delivered only to the testator, or to some person authorized by the testator in writing that is duly proved by the oath of a subscribing witness. After the death of the testator and at the first session of the court after the court receives notice of the testator's death, the will shall be publicly opened and retained by the court.
(3) After the death of the testator, if jurisdiction of the will for probate belongs to a court in another county, upon request of the personal representative named in the will or another person interested in its provisions, the will shall be forwarded by registered mail to the other court or delivered to the personal representative, or to some other person interested in the provisions of the will, to be presented for probate in the other court.
700.3303 Informal probate; proof and findings required.
Sec. 3303.
(1) In an informal proceeding for original probate of a will, the register shall determine whether all of the following are true:
(a) The application is complete.
(b) The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief.
(c) The applicant appears from the application to be an interested person.
(d) On the basis of the statements in the application, venue is proper.
(e) An original, properly executed, and apparently unrevoked will is in the register's possession.
(f) That the application is not within section 3304.
(2) The register shall deny the application if the application indicates that a personal representative has been appointed in another county of this state or, except as provided in subsection (4), if it appears that this or another will of the decedent has been the subject of a previous probate order.
(3) A will that appears to have the required signatures and that contains an attestation clause showing that requirements of execution under section 2502 or 2506 have been met shall be probated without further proof. In other cases, the register may assume execution if the will appears to have been properly executed, or the register may accept a sworn statement of a person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
(4) Informal probate of a will that was previously probated elsewhere may be granted at any time upon written application by an interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where the will was first probated.
(5) A will from a place that does not provide for probate of a will after death and that is not eligible for probate under subsection (1) may be probated in this state upon receipt by the register of a properly authenticated copy of the will and a properly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
For additional States See:
Part 2 - https://answers.uslegal.com/wills-and-estates/filing-will-before-death/28970/
Part 3 - https://answers.uslegal.com/wills-and-estates/filing-will-before-death/28971/
