The term “probate” is generally defined as the legal process in which the will of a deceased testator is reviewed for the purposes of authentication and to establish its validity. However, probate may also refer to a legal process wherein the estate of a deceased individual is distributed in accordance with the supervision of a local probate court.
In the absence of a will, a probate court may also intervene to administer the estate of a deceased individual in accordance with the intestate succession laws of the state in which the estate is located.
Thus, as is clear from the above information, the probate process typically occurs after a person dies. Assuming the deceased drafted a valid will before their death, the probate process will generally proceed as follows:
- After the testator dies, the person whom they have appointed to be executor of their estate can start the probate process by filing the necessary documents with the probate court, which will prompt the court to schedule and set a date for the probate hearing.
- At the probate hearing, the probate court will determine whether or not the original will document is valid. This decision may involve a number of different factors, so it is important to check state probate laws and local court rules for further information.
- While awaiting the hearing, the executor can begin notifying the named beneficiaries and creating a list of the various property, assets, and debts that belong to the estate.
- Once the probate court authenticates the will, the executor will be granted permission to pay off any liabilities, taxes, and/or debts still owed by the estate.
- After all liabilities and debts have been settled, then the executor may distribute the remaining property and assets to the appropriate beneficiaries. The probate court may supervise the distribution of the estate to ensure that no mistakes, foul play, or undue influence occur during the process.
Finally, it is important to note that not every state requires probate and some states have statutes that specify when an estate must pass through probate. Accordingly, be sure to review your state’s probate laws and make sure that you are aware of the requirements for probate in your state.
Can the Will be Viewed During Probate?
The probate process can take anywhere from a couple of weeks or months to several years. The exact amount of time that the probate process takes may depend on a number of factors, such as:
- The value or size of the estate of the deceased individual;
- The procedural requirements and probate laws enacted in a particular jurisdiction;
- Whether any disputes occurred during or in connection with the probate process;
- If the deceased had any pending ancillary probate matters for property in other states that needed to be handled first;
- Whether there is an issue in locating the named beneficiaries or executor of the estate;
- If the executor or some other representative is having problems with securing an official death certificate for the deceased; and/or
- Various other procedural or technical errors related to the probate process or the required documents submitted when filing to schedule the probate hearing.
The reason as to why the length of probate is relevant to the question of whether a will can be viewed during probate is because the will document will not become viewable until after the probate process is complete. Once the court concludes that the probate process is done, then the will document becomes public record. This means that anyone will be able to view the contents of the will for as long as it remains in the public record, which could be for eternity.
However, there are some exceptions where an executor may ask the probate court to seal the records, such as if the will belongs to a famous or wealthy celebrity.
Additionally, an executor or the probate court may allow a party to view the will before the probate process is finished. Some of examples of when a party may be able to view a will during the probate process include:
- If a person believes they were unjustly denied benefits;
- If they need to contest an item in the will before the statute of limitations runs out;
- If there is a will dispute that hinges on the contents of the will or its validity (e.g., if a named beneficiary believes the will has been forged and they have unique experience with identifying the deceased testator’s handwriting); and/or
- If a named beneficiary asks to view the will and the executor grants their request.
Otherwise, the standard answer to whether a party can view a will during probate is not until after the probate process has officially ended.
Can Someone View my Will Prior to my Death?
In general, the only people who will be allowed to view a testator’s will prior to their death are the testator themselves and the individual who is appointed to become the executor of their estate. Anyone else who wishes to read the will prior to a testator’s death must be granted permission to do so by the testator themselves.
In other words, a will is essentially part of a testator’s private property. As such, the only parties who will be allowed to view a testator’s will before their death are:
- The actual testator;
- The administrator or executor of the testator’s estate; and
- Any person who the testator allows to view it (e.g., spouse, close family friend, another relative, etc.).
In addition, a probate attorney may also be able to view a will prior to a testator’s death if the testator hired an attorney to draft their will for them. Aside from the previously mentioned parties, no one else may view a will before a testator’s death unless they are given explicit permission or have special privileges to view it (e.g., an executor or attorney).
All other parties will need to wait until after the testator has died and they are notified as a named beneficiary. Alternatively, if the individual is not entitled to be notified about the death of the testator because they are not a named beneficiary, then the individual must wait until after the probate process is complete and the will becomes public record to be able to view the will.
The Will I Was Shown Earlier is Different Than the Probated Will – Does This Invalidate the Probated Will?
Just because an earlier will contained different provisions than the final probated will does not mean that the probated will is invalid. Before a testator dies, they are free to modify the terms of their will and can change or add the parties named as beneficiaries. They do not need a specific reason to do so.
However, the decision to change a will must be made voluntarily and must not be the result of undue influence or coercion. If the changes were made involuntarily and due to any of these reasons, then a party may be able to successfully challenge the entire will and/or any of its provisions.
In contrast, a minor difference between an earlier will and a probated will that was voluntarily made before the testator’s death will not have any legal effect on its validity.
Do I Need a Lawyer to View a Probated Will?
It is not necessary to hire a lawyer to view a probated will. Oftentimes, a party can simply ask an executor if they can view the will before it is probated. However, you may want to hire a local probate lawyer if there is a dispute over the will or if there is some other reason that you need to view its contents before it becomes public record.
An experienced probate lawyer will be able to review the facts of your situation and can determine whether it may be appropriate to contest the will. Your lawyer will also be able to secure a copy of the will if it is necessary to the will dispute and may be better equipped to handle such requests on your behalf.
Finally, you should also hire a probate lawyer if you need to appear before the probate court or need someone to defend you against a claim related to a will and the probate process.