Does a will have to be followed?

Answer 1

A Will is a legal instrument written by a person in which he or she describes his or her wishes about how the Court should distribute real estate or property property (possessions) after the person dies.

The answer to "does a Will have to be followed" is not clear-cut. Different situations arise in which "The Will" is not followed. For example, if a person is married, the spouse (widow / widower) does not have to deliver the Will to the Court. Real and personal property can "pass" from the deceased to the direct relative. However, a child can file an objection with the Court for the widow / widower to produce the Will. Often these cases result from or result in family strife and fighting among the parties. But if no one objects, the wishes of the deceased never have to be declared to the Court.

However, in cases with minor children with both parents deceased, or if the living parent is not the custodial parent, the Will serves to protect the interests of the minor children. The Will would go through Probate and, in most cases. Judges form decisions that protect the surviving children. The living spouse (non-divorced) who is non-custodial may have no say in how the possessions are distributed or sold.

Courts may also rule against a hand-written Will or codicil; a codicil is an addition to a previously written Will. If hand-written, or not given a date on the paper, or if not witnessed, the Will and any Codicil might be set aside by the Court, especially if minor children are not well protected under the terms of the hand-written Will. Here, Orphan's Court takes precedence over the Probate Court after all debts are paid from the estate.

Another way a Will may not be followed is if it is not found. For example, if a rich but eccentric elderly woman constantly tells her family, "I've left you millions in my Will" but then, hides the Will under a loose floor board in her house, chances are no one will find it in time to submit it to the Probate Court. It may never be found.

All attorneys and court houses strongly suggest that parents with minor children not only put custody wishes in the Will, but also legalize those wishes through other documents. It is never a good idea to rely solely on a Will to indicate who will take minor children; who will immediately control bank accounts and assets (your Administrator may not live close enough to pay immediate bills); or the deceased's burial /funeral home wishes. The Will may not be filed or probated immediately, so all "immediate needs" or issues need to be documented separately. For example, a Financial Power of Attorney can give a family member or an Attorney the right to pay immediate debts, such as to keep the utilities on at the residence of the deceased in the middle of winter.

Answer 2

The will needs to be followed as it is written. If there is a matter of law, the court can allow a deviation from the will. And people can refuse their inheritance, so that it will have to be distributed slightly differently then the testator expected.

Answer 3

Yes. Once the Will has been allowed by the probate court and the executor has been appointed they must follow the provisions set forth in the Will. If there should be a situation that isn't covered in the Will or a provision that is not clear, the executor must seek help from the court.

Answer 4

Yes, a will typically must be followed as long as it meets the legal requirements for validity. The court will oversee the process of executing the will and ensure that the deceased's wishes are carried out according to the law.