Episode 444: Can’t Find the Original Will?

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Making a will is one of the most important things you can do to protect your assets, but what happens if your heirs can’t find the original will? The short answer is that things could get problematic quickly. This is primarily because copies do not carry the same weight as the original in the eyes of estate law.

Before you make a will, it is vital to understand how to ensure it is legal, how to store the original, and what to do if you decide you want to revoke the will and begin anew. Without knowledge of these processes, you could risk your assets being distributed contrary to your final wishes.

What Happens When You Do Not Have the Original Will?

Probate courts need the original will because along with it comes the authenticity of the document. Without the original, there is a presumption that comes into play. It is not as simple as saying that your spouse or parent died, and you cannot find the original, but you have a copy of the will. The law will presume that without an original will, the testator, or person who made the will, destroyed it with the intent to revoke.

Some of the top reasons there is no original will to present include:

• Its location is unknown
• It is misplaced during a renovation or move
• It is destroyed in a natural disaster such as a fire or flood

That said, there are some instances in which it may be possible to overcome that presumption. For example, if the will was partially destroyed in a natural disaster, but some parts are still readable, and you have witnesses (often attorneys) who can attest that the will was only recently drawn up. Another way to overcome the presumption is if a spouse’s mirror-image copy still exists that was drawn up at the same time, and no legal heirs contest using a copy of the testator’s will in court.

Won’t My Lawyer Have Records of My Will?

Many individuals make the mistake of thinking that when an original will cannot be found, their attorney will have copies.

Years ago, lawyers often kept clients’ wills in a safety deposit box or a fireproof safe. The problem is that the lawyers then had the obligation to keep track of it for thirty to forty years or more. Consider what might occur if something happens to the lawyer during that time. Consider if the heirs would even know who the testator’s lawyer was at the time it was drawn up and if they would know how to reach them. If lawyers do have a copy, it is still just a copy. However, if an original will cannot be produced and no one is contesting it, then there may not be a reason to anticipate any problems.

Copies Require Notice

If the copy looks good, the circumstances for not having the original are not unusual and there are no obvious red flags or suspicions, everything may be fine. Yet, the caveat to this is that there must still be a notice put out to all the heirs that would potentially let them know the copy has been entered for probate and there is an application to probate using the copy. The heirs will need to be asked if they have any reason to protest. If the heirs sign waivers of notice saying they will not contest, it can be filed with the court.

Issues can occur if you cannot locate the heirs to notify them. You may have to hunt to find last known addresses, try to contact people who know where they are, and then issue a citation of personal service. If service of process fails, the person applying to probate the will may have to get a court-appointed ad litem to represent the heirs during any proceedings (see our previous blog and podcast about attorneys ad litem).

Copy of Will Scenario

Let us consider a scenario in which a person passed away. A woman, a former neighbor of the deceased, submitted a copy of the decedent’s 30-year-old will. The will left certain assets to the woman. The woman was not related to the deceased and hadn’t seen them in years. The deceased’s estate was close to four million dollars.

There were roughly 60 heirs that stood to inherit something if that copy of the will was invalidated. Because the copy of the will the woman submitted for probate was thirty years old, the woman was advised that she would end up losing her application to probate the copy and to settle.

The deceased’s estate paid the woman’s legal bills because she had done work to initiate probate proceedings. However, in the end, the deceased’s heirs inherited approximately two million dollars.

The lesson in this case is that if you have a legal will and you want there to be a specific distribution of assets upon your death, make sure you have an original that can be accessed by someone you trust. It can be a worst-case scenario when the will you actually wanted to be followed is thrown out by the court because there is no original and there is at least one heir who protests its probate.

Imagine this scenario. A mother passes away. The son and daughter are the heirs at law. The daughter has only a copy of the will in which her mother gives everything to her, and she submits it for probate. The brother could either sign the waiver notice, or he may contest the copy was something presumed to be destroyed with intent to revoke. In the latter case, the son would likely get half of his mother’s estate.

What To Know About Revoking a Will

An individual does have the power to revoke all previous existing wills and begin a new one. This is frequently done if, for example, children or grandchildren enter the picture after the first will was drawn up. The tricky part can be ensuring that the right people know about this change.

Consider this. A person had a will drafted two years ago and ensured that her daughter, cousin, lawyer, etc. have copies of that version. However, the person intends to now revoke it. What should they do?

Contrary to popular belief, tearing up the original will is a mistake. By doing so, it effectively makes the original disappear and then you are back to copies of wills. For a greater degree of protection, it is more efficient to mark the previous will “revoked,” put your signature near the word “revoked,” and put it back in the file. This ensures that when someone presents a copy of the original will, someone else with the original marked revoked can submit it as proof that the copy is null and void. The next step would be to formally create a new will.

Storing Your Original Will

With the importance of an original will already established, the next item on the to do list is to make sure the document is properly safeguarded.

Many individuals choose to store their wills in a safety deposit box at a bank. However, this is not a completely foolproof method. Not all safe deposit boxes are watertight. Should there be a flood, and the will is damp and slightly damaged but still readable, it may be okay. However, should the flood destroy the official document, then you are once again without an original.

Avoid storing original wills in safety deposit boxes or fireproof safes that are underground or at ground-level. Flood waters will be a threat to those documents. Even when putting them in those places above ground, it may still be wise to first put them in a sealed plastic bag.

Lastly, make sure that someone you trust will know where to look for the stored document after you pass. It is key to choose someone you do have a great deal of trust in. This is because whoever finds the original document may compare what they will get from the will that versus what they will get if there is no original document. An untrustworthy person may choose whichever is to their best advantage and could destroy it.

Important Takeaways for Wills

In review, here are the top takeaways about creating, revoking, and storing wills:

1. Make a will and ensure that it is done formally
2. Have witnesses and ask them to sign the document in blue ink
3. Safeguard the original will in a place where it will be well protected (preferably above ground)
4. If you revoke a will, be vocal about it and ensure that you preserve evidence of the fact that the old will has indeed been revoked
5. Make it known to a trustworthy person where the original will is located

Attempting to probate a copy of a will can create undue confusion and heartache. Work with a reputable estate attorney to make sure you are following all the necessary previsions so that your assets will be distributed as you truly wish upon your passing.

If you are planning to apply to probate an estate and do not have an original will, make sure you understand all the steps to comply with the law of your state. A trusted estate and probate attorney will be able to help you with all court requirements.

By Harold "Hap" May, P.C. on August 16, 2024   /   The Legal Play Podcast   /   Leave a comment