What happens when a Will is lost? It is easy to misplace things. While we typically misplace our keys or our phones, or items that we use on a regular basis, it is also common to misplace critical legal documents such as a will. This usually happens if the decedent executed a will long before their death and never told anyone where they stored it. As time went on, their homes became more cluttered and disorganized and when the time came to take care of their estate, their loved ones simply cannot find any documentation.
Alternatively, perhaps there was a move and the document got lost in the shuffle. Many times older adults have to move from their homes and it can be quite hectic. On rare occasions a disgruntled child may steal it if they know that they have been disinherited.
If a will is lost, the first step is to search for a copy of the will. Check with the deceased person’s lawyer or financial advisor, as they may have a copy of the will. It is also worth checking with family members or other close associates who may have been aware of the existence of the will.
If a copy of the will cannot be found, the next step is to check with the local probate court to see if the will was filed with the court. If the will was filed, the court should have a copy of it.
If no copy of the will can be found, the estate will likely need to be settled through the rules of intestacy, which means the state’s laws will determine how the deceased person’s assets are distributed.
If the will can’t be found that doesn’t mean that the decedent’s wishes won’t be honored as long as someone has a copy of the will as there is a procedure to probate a lost will that is quite effective. Unfortunately, while effective, it can be a complicated and difficult process as you must prove that the decedent did not intend to revoke the will by submitting a declaration of the circumstances along with the copy of the will.
If the will is lost and there is no copy the estate will pass to the heirs which may have unintended consequences.
In order to avoid this situation, it is important to keep the original copy of the will in a safe and secure place, and to let family members and other close associates know where the will is located. It may also be helpful to provide a copy of the will to the executor of the estate, so they are aware of the deceased person’s wishes in case the original is lost or damaged.
What is the lesson? Keep your will secure in a safe place and tell a trustworthy individual where it is. I do not recommend putting it into a safe deposit box unless the individual who will need to present it to the court can easily access the box. Also, in this technological age, make sure to scan the document and email it to a trusted individual or a reliable adult child and ask your attorney to keep it stored electronically so that if the original is lost, a copy can be lodged with the court.