When a loved one passes away, and it is time to take care of the estate, one needs to find their last will and testament and file it with the probate court. This task goes to the executor of the will, only, the executor is named in the will. So finding the will is the very first step that must be taken, and whoever finds it should hand it to probate court. Most probate courts require the original document, not just a copy.
What to Do If You Are Unsure There Is a Last Will & Testament
If you don't know whether or not there is a will, much less where one would be, you could always start by scouring files and looking through desks and closets. If that doesn't work, you could find out if the deceased person had a safe deposit box. An immediate relative should be allowed to search the box for the will, while accompanied by a bank official. If the bank doesn't allow this, the probate court could provide you with an order that would enable you to open the box in order to look for the will. Should that not work, there is also the outside chance that the will was already
stored with the probate court.
If the deceased person worked with an attorney to write up the will, then their estate planning attorney should have a copy of this document at the very least. If you don't know who the lawyer was, you could sift through financial records to look for a check made out to an attorney or law firm. Another tack you could try is
posting a notice through a legal newspaper or through a county bar association, a notice to all attorneys asking that whoever has the will supply it so you can bring it to probate court.
Many wills have the clear title "Last Will and Testament", or have the word "Will" printed in the title, but not all wills are alike. In nearly half of the country, a handwritten will that was signed without witnesses is still a viable will, so a will might not even look like a legal document at all.
In your search, here are some other things to be on the alert for:
- Property list: In roughly 50% of states, a will maker can have a separate document that details what should happen to each item of property that isn't real estate. If you see such a document, this is a vital component of the person's will.
- Codicils: This is a paper that amends a will. There is only a slight chance of finding this type of document, as most people will simply write a new will that supersedes the old one.
What to Do If You Can't Find the Deceased Person's Will
If you are not certain that a will was ever made, then it could be that there is no will. A staggering percentage of people in the U.S. never create one. In this case then, state laws will cover what happens to the deceased person's estate. Or other estate planning documents or legal transactions could take care of most issues, such as property held in trust that will simply continue to be managed according to the rules of the trust, a retirement plan that will be transferred to a beneficiary, a surviving co-owner who will take over the house, etc.
- What happens if you only find a copy of the will? It will be tough, but you may be able to prove that this is a valid copy that expresses the wish of the deceased person, a copy that the probate court should accept. Perhaps there is a valid reason why the original will could not be produced, and you could explain this to the court has well.
- What happens if the will has been lost? You may be able to prove that a will was created, such as by calling on the witnesses of the signing, having them explain the contents of the will.
- What if you think someone has hidden the will? You could try a lawsuit, which is an uncertain course to take, as that could simply cause the will to be lost for good.
It is best to proceed in any of these situations only after you have been able to consult an experienced probate attorney. With the right legal counsel, you can navigate this complex field of probate and estate planning law, seeing to it that a loved one's wishes are fully carried out.