Do You Have to File a Will at the County Courthouse?

In Oklahoma, the short answer is No. However, a judge must accept a will and file it if you present the will to him. Also, after a person dies, and the will is probated, the person filing the probate must file the will with the court clerk.

The issue of whether a will has to be filed at the county courthouse, has perplexed many of my clients. Some of my clients, who want to make wills, ask me if they have to file the will at the courthouse after they sign it. Also, some clients, who want to know if their relative had a will, call the courthouse and ask if the will is on file there.

How to File a Will at the Courthouse

There is no law that says that anyone must file a will at the courthouse as long as the testator (the person who made the will) is alive. However, if you deliver a will to a judge of any district court, the judge must hold the will in his office for safekeeping. The judge must also:

·         Give you a receipt

·         Enclosed the will in a sealed wrapper, so that no one can read it

·         Write the name of the testator, residence of the testator, and the date you gave the will to the judge, on the sealed wrapper. Also, if you specify another person who has the right to see the will, the judge may write this person’s name on the sealed wrapper.

The judge may only deliver the will to the testator in person. If the testator does not appear in person, the testator must make a written order, and a witness must sign this order. After the testator dies, the judge may only give the will to another person whose name was on the sealed wrapper, if any. If no one else’s name was written on the sealed wrapper, then after the testator dies, the judge must “publicly” open and read the will in his office. The law does not define the term “publicly” or specify exactly who must be there when the judge opens the will. After the judge opens the will, the judge must keep the will in his office until someone files a probate case and proves the will to be authentic. If the judge finds that he does not have jurisdiction over the probate, the judge must deliver the will to whatever judge does have jurisdiction over the probate.

The state law, on delivering wills to a judge, is found here, here, and here.

You don’t have to file a will at the courthouse – and most people don’t

The law discussed above says only that you may deliver a will to the judge for safekeeping. It does not say that you have to file a will with a judge.

In sixteen years of practicing estate law, I have never filed a client’s will with a judge. Nor have I ever encountered a case where anyone filed a will with a judge. However, I have talked with Oklahoma attorneys who have filed wills with a judge.

Many people keep their wills in their homes or in the homes of family members.

I have a document retention policy where I keep hard copies of all wills I have prepared, for five years. I also indefinitely keep digital copies of all wills I have prepared. Many other lawyers also keep copies of wills they have prepared for their clients.

While the law allows you to file a will with a judge, and specifies what a judge must do, most people don’t use this option. So, if you’re looking for a relative’s will, the courthouse probably isn’t the place to look. Also, the judge can’t let you see the will unless your name is on it.

Some people have filed wills with the county clerk

It’s necessary, at this point, to explain the distinction between the county clerk and the court clerk.

The court clerk is the custodian of all documents filed related to any court case in the county. The county clerk keeps all of the county land records.

There is no law that specifically allows you to file a will with the county clerk or the court clerk. Nor is there any law that requires the county clerk or the court clerk to accept a will that you file. However, some people have filed wills with the county clerk, and the county clerk has accepted wills for filing. (Because the county clerk gets a fee for every page you file, the clerk has an incentive to accept anything you file.)

But most people don’t file wills with the county clerk either. I did a quick search of county clerk records in my home county (Washington County) and, in the past 72 years, only twenty wills have been filed in the county clerk’s office. Also, if you file anything with the county clerk, the document is public record, and anyone may view the document. (This contrasts with filing a will with a judge, who must seal it. So if there are items in your will that you want to keep quiet, don’t file the will with the county clerk.)

If you probate a will, you have to file the will in court

Probate is the process where a court distributes a person’s property after the person dies. For more information on the probate process, read my earlier blog post here.

If you file a probate action, and the decedent had a will, you must file the will in court. If you cannot locate the will, you may probate the will as a “lost will” if you can get two witnesses who will testify as to the contents of the will.

In sum, you don’t have to file a will in court

I decided to write this blog because many of my clients have asked if they have to file a will at the courthouse. In Oklahoma, no law requires you to file a will at the courthouse, and almost no one does.

The Persaud Law Office has assisted many clients with planning their estates, as well as settling the estates of deceased relatives. If you have questions about estate or probate law, give us a call. We’re happy to help.

Photo courtesy of https://commons.wikimedia.org/wiki/File:Hudson_County_Courthouse_Jersey_City_August_2020_001.jpg. Licensed under Creative Commons 4.0.