Wills and probate records and questions checklist

Key takeaway

Gather the will and amendments, ownership and beneficiary records, trust funding documents, appointment papers, asset inventories and valuations, and probate notices to identify how property passes and what administration requires under the applicable law.

Start with a document folder and a list of missing records. For each asset, record its owner, location, account or deed reference, beneficiary information, and the document you want your adviser to review.

Locate the will and related documents

Locate the original will, copies, amendments, and any separate personal property list.
Record who holds each document and how to contact that person.
Gather any witness affidavits and record the names and contact details of attesting witnesses.
Keep earlier wills together for review rather than deciding yourself which document controls.

In Minnesota, for example, after the testator dies, a person holding the will must deliver it reasonably promptly to an appropriate court when an interested person requests delivery. Other states differ.

For a Minnesota informal probate application, identify whether the original will is with the court or accompanies the application, or whether an authenticated copy of a will probated elsewhere accompanies it.

After reasonable diligence, the applicant must state that they know of no instrument revoking the will and believe the offered instrument is the last will.

Match ownership records with beneficiary and trust documents

Gather account statements, deeds, securities registrations, insurance policies, and current beneficiary confirmations.
Collect trust documents together with deeds, account titles, transfer records, and declarations identifying trust property.
Flag differences between a document's asset list and the ownership records.
List property acquired after the will was signed and property located in another state.

In Minnesota, for example, statutory trust creation methods include transferring property to another as trustee, declaring that identifiable property is held as trustee, or exercising a power of appointment in favor of a trustee. Other states differ.

The transfer method includes transfers during life and dispositions effective at death. Legal interests outside an express trust and not otherwise disposed of remain in the settlor.

An informal asset list alone does not establish that each listed asset belongs to a trust or that a purported trust is valid.

Collect appointment papers, inventories and valuations

Gather the appointment order, letters, court filings, and the representative's contact information.
Keep asset statements, valuation work, appraisal reports, and records of liens or other encumbrances together.
Retain the original inventory, later corrections, and records showing who received copies.

In Minnesota, for example, a personal representative must be appointed by the court or registrar, qualify, and receive letters before acting in that capacity. Other states differ.

The representative must settle and distribute the estate under the probated, effective will and applicable law, acting as a prudent fiduciary.

The inventory must be prepared and filed or mailed within six months after appointment or nine months after death, whichever is later.

This duty excludes special administrators and successors whose predecessor already discharged it. Copies go to the surviving spouse, all residuary distributees, and interested persons or creditors who request them.

A representative need not send themselves a copy as surviving spouse or residuary distributee.

A representative may employ a qualified, disinterested appraiser when an asset's fair market value at death is reasonably doubtful. The inventory must identify the appraiser's name, address, and appraised items.

Newly discovered property or an erroneous or misleading inventory value or description requires a supplementary inventory or appraisement.

The supplement must show the new item's market value at death or corrected values or descriptions, plus any appraisers or other data relied upon.

Copies or information must go to persons interested in the new information. File the supplement with the court if the original inventory was filed.

Build a notice and creditor record

Keep probate notices, publication records, creditor correspondence, accessible financial records, mailing or delivery records, and evidence of claims already presented or paid.

Record the first publication date separately from the date printed on the court administrator's notice. Bring both to the review rather than assuming one date answers every deadline question.

Use a separate list for possible assistance recovery claims involving the decedent or a predeceased spouse. The individual creditor notice rules below distinguish those claims.

Codicil: In Minnesota, for example, a codicil is included within the statutory meaning of a will, including an instrument that revokes or revises another will. Other states differ.

Probate inventory: In Minnesota, for example, this lists property owned at death in reasonable detail, with each item's fair market value at death and the type and amount of any encumbrance. Other states differ.

Four resources for the next step

Wills and probate
Open this guide when your folder is assembled and you want context for the will, appointment papers, and questions you have flagged.
Estate administration records and questions checklist
Use this next to organize the broader administration discussion around the inventory, valuation work, and notices collected here.
Trust funding records and questions checklist
Bring this checklist into the review when trust documents and asset ownership records need a closer comparison.
Incapacity planning documents and questions checklist
Use this companion checklist to create a separate folder for incapacity planning rather than leaving those questions buried among probate papers.

An Investor Advantage perspective on getting started

"So I would just encourage all the listeners, if they haven't had a conversation with their estate planning attorney, or they've put off estate planning like most Americans, just 'cause they don't want to think about it,"
From an Investor Advantage talk hosted by Richard C. Wilson

Common questions

Which creditors need individual notice?

In Minnesota, for example, the representative must serve then known and identified creditors within three months after first publication, unless their claims have already been presented or paid. Other states differ.

A creditor is known if any of these conditions applies:

The representative knows the creditor has asserted a claim arising during the decedent's life against the decedent or the estate.
The creditor has asserted a claim arising during the decedent's life, and that fact is clearly disclosed in accessible financial records known and available to the representative.
A reasonably diligent search for creditors in accessible financial records known and available to the representative would reveal the creditor's claim.

A creditor is identified when the representative knows enough of the creditor's name and address to permit service.

Service may be by delivery or by certified, registered, or ordinary first class mail addressed to the creditor's office or residence.

Specified assistance recovery claims involving the decedent or a predeceased spouse require the separate governmental notice procedure instead of these individual notice provisions.

Does publication establish every creditor's deadline?

No. In Minnesota, for example, the published four month claim period expressly excepts creditors entitled to further service of notice under the individual creditor notice provisions. Other states differ.

Unless notice was already given, publication follows informal appointment of a general representative or filing a formal petition for such appointment.

Under the court administrator's direction, notice is published weekly for two successive weeks in a legal newspaper in the county where proceedings are pending.

It gives the representative's name and address and directs creditors to present claims within four months after the date of the court administrator's notice that is subsequently published, subject to those exceptions.

Can a will provide for property acquired later?

Yes. In Minnesota, for example, a will may provide for property owned at death and property the estate acquires after death. Other states differ.

The will must provide for that property's passage. Gather the will and asset records for review rather than treating the acquisition date alone as the answer.

What if the original will cannot be found?

In Minnesota, for example, formal probate provides a petition route when the original is unavailable, with required statements about its contents and unavailability. Other states differ.

If neither the original nor an authenticated copy of a will probated elsewhere is with the court or accompanies the petition, the petition must state the contents and indicate that the will is lost, destroyed, or otherwise unavailable.

Those petition requirements alone do not establish that the will will be admitted.

Can I request copies of probate court records?

Yes, for records that are publicly accessible. In Minnesota, for example, a request to the custodian permits inspection or copies where the records are normally kept during regular working hours. Other states differ.

Copies or other appropriate formats may replace originals to protect restricted information, enforce remote or bulk access limits, protect record security, or address impracticality.

Records cannot be removed without the custodian's permission. This access procedure does not establish that every probate document is public.

Sources

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