What Does a Will Do?

A very, very common misperception is that when a person names someone as an executor in a will or makes a bequest (leaves something) to someone in a will then that is all it takes.

That is not only wrong but believing that can cause a person to engage in very dangerous behavior.

A typical question a lawyer (or an online legal website for that matter) might get is "I am the executor of a will and I have distributed all of the property but the realtor says that the letter I got from all the heirs saying I could sell the house isn't enough. What do I need?"

This scenario and question show a couple of things: 

1) The person tried to do the probate without a lawyer;

2) They didn't know what they were doing; and

3) They almost certainly didn't go through court.

How do I know this?


1) If they had a lawyer they wouldn't have to ask the question;

2) They would know that an order from the probate judge will give them what they need; and

3) The same as #2

A will is usually a written document that expresses the wishes of the deceased. That's all. In order to be a valid will it has to meet certain requirements that vary state by state, but it does not actually make anyone an executor or give them any power, nor does it actually vest ownership in anyone.

When a person dies there is legal entity automatically created. That entity is called "The Estate of (insert deceased's name)". For our purposes in here we will just call it the Estate.

At  the moment the Estate is created it acquires ownership of all property that the deceased owned at the time of their death. Any community property is divided with the spouse taking their share and the decedent's share becoming a part of the estate.

Some type of probate is thus required to change the ownership of the property from the Estate to the heirs. So, in layman's terms, the will expresses what the deceased wanted to happen to the property but actually distributing it requires an order of the court.

Likewise, the will may "appoint an executor" but that language is misleading. The will actually "nominates" an executor of the estate, but it takes an order of the court to actually give that person any powers, which is usually done through the granting of "Letters of Administration", which then allows the executor to gather assets, pay debts, and distribute the remaining assets.

A person who acts without an order of the court giving them the power to perform any of the executor duties may make themselves liable if they give property to the wrong people or if they act in a way that prejudices any creditors.

There are a number of different kinds of probate, some more informal such as an Affidavit of Heirship which can make the process both cheaper and easier but to know whether or not they apply needs a complete evaluation of the estate which should be done by an attorney.

NOTE: In this article I have used the term Executor even though some states use the term Administrator. For our purposes and in most cases there is little to no difference.

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