Upon the death of a family member or friend, there are many details to see to in a short time. The emotions surrounding the loss make level-headed decisions difficult, and once the funeral is over, there are many financial and legal tasks that must be dealt with. A letter of instruction can provide valuable assistance for surviving family members who are navigating this process, but many people do not know about or use these tools.
Who will handle all of these tasks and obligations, and how will they make decisions regarding their loved one’s estate? A will addresses both of these concerns, but a family cannot follow the instructions it contains if the document cannot be found. Understanding the significance of a will and how to locate one is crucial to completing the probate process in accordance with a loved one's wishes.
Why a Will Is Important
A will provides detailed instructions for distributing an individual’s assets and belongings after they pass away. It also names a trusted person to oversee this process, known as the “executor.”
If a person dies without a will (i.e. “intestate”), each state provides specific guidelines for who can be appointed to administer the estate. The state’s intestacy laws are used as a makeshift will to determine which heirs are entitled to property and the size of the shares they each receive. Keep in mind that this could be drastically different from how the deceased intended their estate to be distributed.
Finding a Will
The latest version of the last will and testament document should be kept in a safe location that is known to the named executor and other beneficiaries.
Unfortunately, paperwork can get misplaced and loved ones pass away before they are able to discuss their wishes and organizational methods with family. Below are a few common places where wills are kept and some tips for tracking one down.
In the Home
The obvious answer is not always the simplest one. Perhaps Dad got unusually creative with hiding his will for “safe keeping.” Maybe Mom never got around to organizing her paperwork, or worse yet, hoarded all incoming mail and documents. If you can’t find the will and you have a hunch or know for certain that one exists, check EVERYWHERE. Look in the freezer, in filing cabinets, and in the mystery box on the top shelf of the linen closet. If you’re sorting through filing cabinets or piles of papers, be sure to keep your eye out for any business cards, bills or correspondence from attorneys. This could save you a great deal of time by going straight to the source.
Look in the Safe Deposit Box
Many people keep a will in their bank safe deposit box. Bank regulations typically allow for temporary access to safe deposit boxes for the sole purpose of removing a will, but some states may require a court order to open the box.
Contact Local and Past Attorneys
Traditionally, the law firm that prepared the client’s will would give a copy to the client and retain the original document in a fireproof, locked safe. However, over the years, these files have grown larger and larger, firms have changed hands, the original attorney may have died or retired, clients may have moved and not notified the law office, etc. There are a number of complications that can transpire in the years since a will has been drafted. Because of this, many lawyers and law firms now keep a copy of the will in the client’s file and deliver the original document to the client for safekeeping.
Thus, if a will is not found in a loved one’s house or safe deposit box, it would be a good idea to call the office of any attorneys that the decedent hired or may have worked with over the years. Clues regarding visits to a lawyer or law firm can usually be found in the decedent’s files, papers and financial records. In a small town, it may be worth contacting all local law firms just to be sure. These days, lawyers frequently send around an email to other local attorneys asking if anyone prepared a will for so-and-so, who recently passed away.
Check with the County Courthouse
The state may provide a method of filing wills at the county courthouse, but this is rarely used since most people like to keep their important documents close by. However, filing is a possibility to consider if you are having a difficult time locating a will. Contact the probate courts of EACH county in which the decedent lived to ask if they have the will on file—even if it was filed many years ago. The decedent may have filed it with the court and then moved away.
Copies vs. the Original
What if you find a copy, but the original cannot be located? While it is possible to probate a copy of a will, it is quite difficult. The legal presumption is that, if an original will cannot be found, then it was deliberately destroyed, i.e. revoked by the person who signed it. Other issues can arise when an old version or multiple versions of the will are found. You may have to work with a probate attorney and the probate court to determine which one is valid.
When There Is No Will
If none of these techniques yield a will of any kind, it is likely that one was never created. In this case, it is wise to contact an attorney for advice on administering the estate in accordance with the state’s intestacy laws.
As you can see, the prospect of finding a missing will or determining if there even was a will can be daunting. It should serve as a cautionary tale for all of us. Create a designated file containing important legal information and a letter of instruction to let your executor know where they can find these documents. Your surviving relatives and friends will be grateful you took the time to do this.