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§ 28-40-104 - No will effectual until probated -- Unprobated wills admitted as evidence.

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28-40-104.No will effectual until probated -- Unprobated wills admitted as evidence.(a)Nowill shall be effectual for the purpose of proving title to or theright to the possession of any real or personal property disposed of bythe will until it has been admitted to probate.(b)Exceptas provided in28-41-101, to be effective to prove the transfer ofany property or to nominate an executor, a will must be declared to bevalid by an order of probate by the circuit court, except that a dulyexecuted and unrevoked will which has not been probated may be admittedas evidence of a devise if:(1)No proceeding in circuit court concerning the succession or administration of the estate has occurred; and(2)Eitherthe devisee or his or her successors and assigns possessed the propertydevised in accordance with the provisions of the will, or the propertydevised was not possessed or claimed by anyone by virtue of thedecedent's title during the time period for testacy proceedings.(c)Theprovisions of subsections (b) and (c) of this section shall besupplemental to existing laws relating to the time limit for probate ofwills, and the effect of unprobated wills, and shall not be construed torepeal28-40-103 and subsection (a) of this section or any other lawnot in direct conflict herewith.
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  • 28-40-104. No will effectual until probated -- Unprobated wills admitted as evidence.

    (a) No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.

    (b) Except as provided in 28-41-101, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the circuit 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 proceeding in circuit court concerning the succession or administration of the estate has occurred; and

    (2) Either the devisee or his or her 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.

    (c) The provisions of subsections (b) and (c) of this section shall be supplemental to existing laws relating to the time limit for probate of wills, and the effect of unprobated wills, and shall not be construed to repeal 28-40-103 and subsection (a) of this section or any other law not in direct conflict herewith.

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