How do the probate courts deal with a lost or missing will?
When a person makes a will, the advisable course of action is to ensure that your solicitor has a copy of the will and then keep the original in a safe place. If you decide to make any changes to your will, you will need to ensure that the old version is destroyed and that your solicitor has a copy of the updated version.
Unfortunately, this doesn’t always happen. Many people fail to give their solicitor a copy of their will, and they put the original in such a safe place that it can’t even be found! They may have genuinely lost the original while they were alive, and never got around to making another will to replace the lost document. The will may have been revoked by the decedent and all copies destroyed.
In the event that the original will is missing and the lawyer or bank has a copy of the will, the probate courts may accept this providing proof of signature from the decedent is provided, along with proof of witnesses’ signatures.
However, in the event that there was no copy of a will left, and the original cannot be found, the probate courts will deal with the matter in a very similar way to a person dying without having left a will at all. They will appoint an executor and distribute the assets of the decedent in accordance with state law with regards to a missing will.
If the deceased’s will cannot be found, there are a number of places you should check to see whether the document has been kept there for safety. You could check with the deceased’s bank with regards to a safety deposit box that he or she may have had. Unless you are legally entitled to do so, you will not be able to access the deposit box yourself, but the courts can arrange for this to be done in order to try and find the will.
Obviously, you should check with the deceased’s lawyer, or if you don’t know who the lawyer is you should contact local law firms or keep your eyes open for any business cards or correspondence from a legal firm. Safes, closets and drawers should all be searched thoroughly, and you can even try looking through the pages of books to see whether the will was hidden in one of them.
Locating the witnesses to the will may also give you a clue as to where the document may be, and you should speak to close friends or colleagues of the deceased as they may have been asked to bear witness to the document.
