the Probate Judge—Copies of Will
Rudd, appeared September 8, 2005, Albuquerque Journal, Business Outlook
Reprinted with permission
- Editor's note: This
column may not be quoted or reproduced in whole or part without express written
permission of the author.
Q: Are you
entitled to copy of a will before a probate case is filed in court or during
the life of the testator? Please don't use my name or hometown.
keeps arising. In New Mexico no one is entitled to see another person's will
until that person has died. If the testator allows you to see a copy of the
will during his or her lifetime, fine. If not, you will have to wait.
One exception might apply if a court has determined that a person is incapacitated
in a conservatorship proceeding. Then the court-appointed conservator has
a right to see the incapacitated person's will or trust in order to preserve
the estate plan as part of the conservator's financial management duties.
But testators with mental capacity are not required to share the contents
of their wills with anyone. Many choose to do so. At the very least, testators
should tell their personal representative the location of the original will
and how to access it if a probate needs to be filed after the testator's death.
You asked about seeing a will of a living person. But that will may or may
not affect the person's assets, depending on how the assets are titled. Not
every estate requires a probate case to be filed in court.
As I have often discussed, many people avoid probate by holding their property
in joint tenancy or in some other arrangement, such an insurance policy that
designates a beneficiary, "payable on death" accounts, "transfer
on death" accounts, "transfer on death" deeds, or living trusts.
While a will provides instructions to the judge and the personal representative
about to whom and how you want your assets distributed, assets titled in the
above manner are not affected by a will. What does "not affected by a
Here are two examples. Husband Antonio and wife Marguerite have six children,
all over age eighteen. Husband and wife's home is held in joint tenancy with
right of survivorship. Marguerite dies. Antonio voluntarily adds the name
of one son Juan to the house deed, along with his own name, as joint tenants
with right of survivorship. Antonio signs a will that states, "All the
rest, residue and remainder of my estate, I leave in equal shares to my six
Antonio believes his will means that his six children share the house upon
his death. Antonio dies. However, the house held in joint tenancy is "not
affected by the will" and passes without a probate to the surviving joint
tenant Juan. Despite what the will says, Juan has no legal obligation to share
the house with the other five children.
A similar result can arise in second marriages. Suppose spouse Harold remarries
and adds the name of the new spouse Miranda to his home as a joint tenant.
Harold's will leaves everything in equal shares to his four children. If Harold
dies first, who owns the house? If you are thinking "Miranda," you
are correct. A will does not affect joint tenancy property or property with
named beneficiaries who survive the testator.
The above examples are additional reasons why one might choose not to draft
one's own will. Understanding the intricacies of titles to property and which
assets the will affects is an important part of estate planning. A reputable
estate planning attorney should explain all of these details to ensure that
your will and estate plan accurately reflect your wishes.
2005, Albuquerque Journal, All Rights Reserved