When a person dies, their last will and testament can be admitted to probate. In order to submit a Will to probate, the executor nominated in the Will takes the Will to the surrogate’s office for the county in which the decedent died domiciled, along with an original death certificate for the decedent.

Most Wills contain a clause that says something to the effect of the following: I hereby appoint Joe Doe as executor of my Will. This clause is a nomination of Joe Doe to be the executor of the decedent’s estate. Joe is not officially the executor of the decedent’s estate until Joe submits the Will to probate before the surrogate.

The act of probating the Will is designed to prove the validity of the Will. The surrogate’s office reviews the Will and, assuming that the Will satisfies the formal requirements of a Will, admits the Will to probate. If the Will does not satisfy the requirements of a Will, then the surrogate will not admit the Will to probate. In cases such as these, the nominated executor will either need to forego the probate of the Will or appear before a judge and request that the Will be admitted to probate.

An executor admits a Will to probate in order to be appointed officially as executor. The most common reason an executor needs to be appointed as executor is so the executor can access the decedent’s assets.

For instance, without the paperwork from the surrogate, the executor cannot go down to the bank and access the decedent’s bank accounts. Without the paperwork from the surrogate, the executor cannot sell the decedent’s house or transfer title to the house to the beneficiaries of the estate. In short, the executor cannot accomplish any task on behalf of the estate without being appointed as executor.

Many Wills are never submitted to probate. For instance, Mr. Smith may die and Mrs. Smith may find that all their assets passed to her as the surviving joint tenant–their house, their bank accounts. Mr. Smith may have named Mrs. Smith as the beneficiary of his IRA, so Mrs. Smith doesn’t need to probate his Will in order to claim the IRA since she is the named beneficiary.

Nevertheless, it may be a wise idea to file a certified copy of the decedent’s Will with the surrogate’s office. In order to submit a Will to probate, the executor must pay the surrogate a fee of about $150. To record a certified copy of the Will with the surrogate’s office, without having the Will admitted to probate, costs about $50.

So, why might someone want to record a certified copy of the Will with the surrogate? Well, assume that Mr. Smith dies. Mrs. Smith believes that all of Mr. Smith’s assets passed to her and there is no reason to submit her husband’s Will to probate. Mrs. Smith, desirous of lightening the clutter around her house, throws out Mr. Smith’s Will, because she believes the Will no longer serves a purpose.

Five years later, Mrs. Smith dies. Mrs. Smith’s son, who is the executor of her estate, finds out that he needs to probate Mr. Smith’s name because of an issue with one of the assets–perhaps a bank account is still in Mr. Smith’s name or there is an issue with the couple’s home. Now, the son, who was the alternate executor nominated in Mr. Smith’s Will, does not have Mr. Smith’s Will because Mrs. Smith threw it out.

If a certified copy of the Will had been recorded with the surrogate, then that copy could be admitted to probate. For this reason, even if you think a Will serves no purpose, it might be advisable to record a certified copy of that Will with the surrogate’s office. It’s better to be safe than sorry.