You’ve seen the Hollywood films. A wealthy billionaire passes away, leaving a fortune behind. Mystery surrounds the fate of the fortune — who will inherit the billions in assets?
The executor gathers the deceased’s family into an ornate conference room or into the extravagant study of the deceased’s mansion and unveils a folder from his briefcase. The deceased passed away testate, he tells the family, meaning that the individual wrote a will prior to death.
Inside the folder is The Last Will and Testament of the deceased. Cue the dramatic music.
The family waits with bated breath as the executor cuts open the sealed envelope. Then, slowly, the executor begins reading the contents of the will.
There is an audible gasp from the family as the deceased’s last wishes are revealed. Then, suddenly, dramatic chaos ensues — fingers are pointed, voices are raised, and the family is at each other’s throats.
You get the point. It’s a dramatic moment in the estate settlement process, and you likely don’t need my attempt at a screenplay to understand the process.
If you’ve seen recent Hollywood blockbusters like Knives Out, you likely have an idea in your mind of what this process looks like. And if you think we like Knives Out here at Atticus, you aren’t wrong — we reference our love for the 2019 thriller in another article here.
For all the things that Knives Out got right about estate settlement, it also got a few things wrong.
What is the Reading of the Will?
The reading of the will, also often called the will reading, is a fictional situation when a lawyer gathers the deceased’s family together to reveal the contents of the deceased’s will.
Wait, what? Surely you caught that as well. Let’s take a look at that definition again:
The reading of the will, also often called the will reading, is a fictional situation…
Yes, that’s right. The reading of the will is a thing of pure fiction. It’s not real. It’s fake. It’s a situation designed by Hollywood to add drama to the estate settlement process.
If the Will Reading is Fake, What is the Typical Protocol?
It may be that your loved one just passed away and that you’re serving as the executor of the estate. Or perhaps you were close to the loved one and expect to be named as a beneficiary of the deceased’s will.
Whatever the case may be, the process that occurs instead of the fictional will reading is relatively straightforward.
We can think of the actual “will reading” protocol as four main steps:
- Filing the Will
- Notifying Beneficiaries
- Notifying Disinherited Heirs
- Validating the Will
Step #1 Filing the Will
Depending on state probate laws, the executor must file the deceased’s will with the local probate court within a certain number of days after the date of death. That timeline is often between thirty or ninety days after the deceased’s passing.
Step #2 Notifying Beneficiaries of the Will
After filing the deceased’s will with the local probate court, the executor must inform each of the estate’s beneficiaries of the deceased’s passing. Once again, state laws will stipulate the timeline within which notifying the beneficiaries must occur.
In addition to notifying the beneficiaries, the executor must notify the guardian of any minors that are listed in the will.
If the deceased left behind children or grandchildren that are named in the will, the executor will need to ensure that the guardians of those children are notified of the deceased’s passing in a timely manner.
The same is true with any individuals who are incapacitated or do not have the mental capacity to care for themselves. If a beneficiary is elderly and struggles with dementia, for example, the beneficiary might have a legally-appointed agent who possesses power of attorney.
If that is the case, the agent possessing power of attorney will need to be notified of the deceased’s passing.
In addition to notifying the beneficiaries of the deceased’s passing, the executor will likely distribute copies of the filed will to the beneficiaries. This will give the beneficiaries a chance to review the document and ask any questions prior to the validation of the will in court.
Step #3 Notifying Disinherited Heirs
Family relationships can often be messy. Disagreements, marriages, divorces—there are myriad different factors that can impact a family relationship.
The testator (the individual who wrote the will) has the right to disinherit nearly anyone from their will. There is one person that the testator cannot disinherit — a spouse — but that is a discussion for another time.
The spouse aside, the testator can write anyone from the will if they choose to do so. It could be a daughter, a son, or any other heir.
Since the disinherited individual is no longer part of the will, technically the executor has no legal requirement to notify the disinherited heir of the testator’s passing.
Even in the absence of the legal requirement, however, the executor may want to notify the disinherited heirs. The executor may also want to give each disinherited heir a copy of the filed will, just as the executor gave each beneficiary of the will a copy of the filed will.
Why is that the case? Knowing that the disinherited heirs are notified of the deceased’s passing and have a copy of the will ensures that the disinherited heirs will have the opportunity to ask any questions or raise any concerns prior to the validation of the will in court.
In addition, the executor may want to ensure that the possibility of a will contest is handled as quickly and efficiently as possible. In most states, there is only a certain timeline within which an individual can challenge the contents of a will.
Providing the will to each disinherited heir will begin that clock, limiting the timeframe for someone to challenge the will’s validity.
Although we’ve covered will contests extensively in other articles, it’s important to understand the concepts of will contests when discussing disinherited heirs.
The definition of a will contest is as follows:
A will contest is a legal proceeding that occurs in the probate process when interested parties file a claim with the probate court to dispute the validity of the document.
The important clarification that we need to make here is that any interested party can file a claim with the probate court to dispute the validity of the will.
What is an interested party? In simplest terms, it is someone who stands to materially gain or lose from the contents of the will.
Any random person cannot dispute the validity of a will. In the eyes of the probate court, being an interested party means you are either an heir (disinherited or inherited) of the deceased or are already a listed beneficiary of the will.
The idea of a will contest leads us directly to the fourth step of the will reading process that we want to highlight:
Step #4 Validating the Will
After the will is filed with the probate court, the court will determine the validity of the will. This is the time in which a will contest will occur if any interested party wants to challenge the document’s validity.
In most states, the will becomes an item of public property once the document is admitted into probate. Anyone can request a copy of the document once it is with the probate court.
In some instances — especially if the testator did not pass away due to natural causes — the executor can ask the court to “seal” the will. This prevents the public from viewing the will and learning about the contents of the document.
Once the timeframe for a will contest to occur has passed, the will is deemed as valid and will stand as the final wishes and directions from the deceased individual.
Probate, although rewarding in some ways, can be expensive, difficult, and time-consuming.
Our guides to probate are an invaluable resource to thousands of executors and personal representatives, and chances are will help you too.
Here’s one of our best: Beginner’s Guide to Probate: Timeline, Deadlines, & More