I am sometimes asked what to do if one cannot find the original will of a deceased person. Below are some helpful hints.
If a will is missing because the deceased person intentionally revoked it, an earlier will or the laws on intestate succession would determine who gets the deceased person’s estate.
If a will is missing because it was stored in a bank vault destroyed in a fire, the probate court may accept a photocopy of the will (or the lawyer’s draft or computer file). However, the court will probably require evidence that the decedent properly signed the original.
If the original will simply can’t be found, then what do you do?
First, check some typical hiding places at the deceased person’s home and car – filing cabinets, desk drawers, the “tackle box” in the back of the closet, wall or floor safes, garages, glove compartments and trunks of cars, even between pages in a book and under mattresses!
Second, find out if the deceased person had a safe deposit box. Safe deposit box keys are typically large, are aluminum or silver in color, and usually say “do not duplicate.” If you find such a key, call each bank where the deceased had a checking or savings account in order to locate the bank with the safe deposit box. Be aware that you might need a court order before the bank will allow you access to the box.
Third, see if you can locate the business card or letterhead of the attorney who drafted the will. Go through all checkbooks carefully and look for checks to law firms. You might have to go back many years because people often do not regularly revise their estate plans.
Fourth, if you cannot find any information about an attorney, contact any other advisers that the person used, such as a financial planner, CPA, or insurance agent. One of them might know the attorney used by the deceased.
Fifth, talk to friends of the deceased. Often, they are witnesses to a will or they might have been told where the will was kept or who drafted it. Search the deceased person’s address book.
Finally, check with the Probate Court in the county of the state where the decedent lived. In the rare event that the will was filed, it will likely be available to the public for viewing and purchase.
If you still cannot find the will, your next step should be to contact an attorney to determine how the estate will be settled without a will.
Given how difficult it is to find a “lost” will, I strongly encourage my clients to inform me and their designated executor, trustee, and other trusted individuals of the location of all original estate planning documents. If you keep your original will in a safe deposit box, make sure to transfer ownership of the box to your living trust (so that your successor trustee has access to the box after your death without the need for a court order). If you keep your original will in a fireproof safe in your house, make sure you let some family members know where to find the combination (or key) if you are no longer around and the box is locked. You must let others know where your original will is kept. Otherwise, all your hard work in drafting the will may be for nothing. An original will that cannot be found is like no will at all.