Does the Court need the original will? If I have a will is it necessary for my heirs to start a probate (court) proceeding when I die?

If it is necessary to commence a probate proceeding, the court will need the original will. Having a will does not avoid probate. The court will review the original will to confirm it is the decedent's will and be guided by its terms in assuring the estate assets are distributed properly. Having a will does not mean you can avoid probate, if you have probate assets.  The will simply tells the personal representative how he or she is to distribute the estate assets as part of the probate proceeding.

 

We are very surprised when clients bring in a decedent's will to discuss the distribution prohibitions and are under the mistaken belief a court proceeding  (i.e.- probate) is not required.  In fact just the opposite is true, if there are probate assets. 

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