Section 3-102
Except as provided in section 3–1201, to be effective to prove the transfer of any property or to nominate an executor, a will shall be declared to be valid by an order of informal probate by a magistrate or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no court proceeding concerning the succession or administration of the estate has occurred, and (2) either the devisee or the devisee's successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings.
Comment
The exception referring to Section 3-1201 relates to affidavit procedures which are authorized for collection of estates worth less than $25,000.
Section 3-107 and various sections in Parts 3 and 4 of this Article make it clear that a will may be probated without appointment of a personal representative, including any nominated by the will.
The requirement of probate stated here and the limitations on probate provided in 3-108 mean that questions as to testacy may be eliminated simply by the running of time. Under these sections, an informally probated will cannot be questioned after the later of three years from the decedent's death or one year from the probate whether or not an executor was appointed, or, if an executor was appointed, without regard to whether the estate has been distributed. If the decedent is believed to have died without a will, the running of three years from death bars probate of a late-discovered will and so makes the assumption of intestacy conclusive. These limitations do not apply to proceedings to construe probated wills or determine heirs of any intestate. See Section 3-108.
The exceptions to the section (other than the exception relevant to small estates) are not intended to accommodate cases of late-discovered wills. Rather, they are designed to make the probate requirement inapplicable where circumstances led survivors of a decedent to believe that there was no point to probating a will of which they may have had knowledge. If any will was probated within three years of death, or if letters of administration were issued in this period, the exceptions to the section are inapplicable. If there has been no proceeding in probate, persons seeking to establish title by an unprobated will must show, with reference to the estate they claim, either that it has been possessed by those to whom it was devised or that it has been unknown to the decedent's heirs or devisees and not possessed by any.
It is to be noted, also, that devisees who are able to claim under one of the exceptions to this section may not obtain probate of the will or administration of the estate to assist them in their efforts to obtain the estate in question. The exceptions are to a rule which bars admission of a will into evidence, rather than to the section barring late probate and late appointment of personal representatives. Still, the exceptions should serve to prevent two “hard” cases which can be imagined readily. In one, a surviving spouse fails to seek probate of a will, giving the spouse the entire estate of the decedent because the spouse is informed or believes that all of the decedent's property was held by them jointly, with right of survivorship. Later, it is discovered that the spouse was mistaken as to the nature of the decedent's title. The other case involves a devisee who sees no point to securing probate of a will in the devisee's favor because of being unaware of any estate. Subsequently, valuable rights of the decedent are discovered.