What If You Lose Or Can’t Find A Deceased’s Will?

Let’s assume that sadly, a loved one passes away. You know that your relative was diligent, and perhaps, you even know that he or she at some point visited an estate planning attorney, and thus, had a will. The problem is that you don’t know where he or she kept that will, and now that he or she is gone, there is potentially nobody to ask where the will is.

Intestate Distribution

With no will, you do run the risk of having your loved ones assets being distributed intestate. This is the statutory “next of kin” order, by which someone’s assets pass when there is no will. This may be totally different than your loved one’s wishes, as they were written in the now missing will.

Under California’s intestate laws. The surviving spouse will get the entire estate, if there are no surviving children. If there are children, the spouse and children will share equally in the estate. If there is neither a spouse nor children, grandchildren, parents, and siblings, are next in line to inherit.

Note that intestate laws will apply to whatever assets were supposed to be in the now-non-existent will. So if property is in a trust, that property will be distributed per the trust, and unaffected by the probate court or intestate laws. Only the property listed in the will that cannot be found, would be subject to intestate laws.

Tell Others Where Your Will is Located

This is also a lesson for all of us—yes, you should have a will, and yes, it’s OK to keep it somewhere safe—but make sure there is someone who knows where the will is, or who is safeguarding the will. And if you update your will, keep it in the same place as the old one (or destroy the old one), so as not to cause confusion later on.

What If You Have a Copy?

If you have a copy of the will, it’s not ideal, as you need an original. However, a copy of a will is better than nothing at all, and, in probate court, you can ask the court to recognize the copy as if it were the original, although this will often require the testimony of witnesses.

You will have to show not only that the copy expresses what the original would have expressed, if it could be located, but also prove to the court that the deceased didn’t lose or purposefully destroy the original will, which would express a desire to completely revoke whatever is or was written in the will.

Finding a Missing Will

There is no one perfect way to find a missing will. A personal representative or executor, appointed by the Court, will have the authority to contact attorneys, or financial institutions, which may have the will, in order to look for it. The executor may also be able to get court permission to break locks or safes, in order to look for the will.

If the deceased had any attorneys, for any legal matters, the executor can ask them if they are aware of the location of the will.

A missing will can cause problems. We can help. Call the Torrance probate will and estate attorneys at Samuel Ford Law today.

Source:

leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?article&chapter=1.&division=6.&lawCode=PROB&part=2.&title=