After a loved one dies, the person who will be wrapping up the estate needs to look for the deceased person’s will, and keep it safe once it’s found.
The executor of the will—the person the will names to take charge of the person’s affairs when the time comes—is the person who should take custody of the will. But there’s a Catch-22 if you don’t know who the executor is until you find the will and read it.
Generally, the people who were the closest to the deceased person look for the will and take responsibility for it once it’s found. But it shouldn’t matter who actually finds the will. As explained below, whoever takes possession of the will has a legal responsibility to promptly turn it over to the local probate court.
If you don’t know where the will is, start your search in the places that seem like good bets to house important documents: file cabinets, desk drawers, and boxes of papers at home and work. If you don’t find anything, consider these possibilities:
Safe deposit boxes. Many people follow the common advice to keep their wills in their safe deposit box. This keeps the document safe, but it’s usually a bad idea for other reasons, which become obvious as soon as you need access to the box and can’t get it. No one but an owner can get into a safe deposit box, and if the deceased person was the only owner, it could be a hassle for anyone else to get access. If you are an immediate family member, the bank may let you open the box, in the presence of a bank official, and look for the will. (You won’t be allowed to remove anything else.) If the bank won’t cooperate, you can go to court and ask for an order allowing you access to the box solely for the purpose of finding the will.
The deceased person’s lawyer. If the deceased person hired a lawyer to draft the will, the lawyer may have the original signed document or a copy of it. If you think that’s the case, call the lawyer to notify him or her of the death. The lawyer will then be required to file the will with the probate court, and you can get a copy. If you know the lawyer’s name but don’t have contact information, you can probably find it online or get it from the state bar association. If you think a lawyer drafted the will but you’re not sure, go through the deceased person’s checkbook and look for payments to a lawyer or law firm.
The local probate court. It’s not likely, but the deceased person may have deposited the will with the local probate court. You can ask the court.
The local lawyer community. Publish a brief notice in a local legal newspaper or county bar association publication, announcing the death and asking anyone who has the will to turn it over to you.
Typical wills are labeled with a title like “Last Will and Testament” or “Will of John T. Smith.” If a lawyer prepared it, it might be stapled to a stiff piece of colored paper or in a thick envelope with the printed label “Will.”
You may, however, find a handwritten will, which is signed but not witnessed. (Conventional wills are signed by two adult witnesses, who watch the will-maker sign the document.) These handwritten wills are called “holographic” wills and are valid in about half the states. For your state’s rule, see “Holographic Wills.”
While you’re looking, also pay attention to:
Codicils. A codicil is a document that changes or adds to the terms of a will. Most people who want to make significant changes to their wills just revoke the old will and make a new one, instead of adding a codicil, but you might find a codicil.
Lists of personal property. In more than half the states, people can make lists of items and the people they want to inherit them, and just refer to these lists in their wills. This kind of list—the legal term in most states is a “personal property memorandum”—is easier to make than a will, because it doesn’t have to be signed in front of witnesses. It can be used to tangible personal property items, which means items like books, cars, or furniture, or heirlooms. It can’t be used to leave real estate or money.
Whether or not a probate court proceeding is planned, the person who has possession of the original will must file it with the probate court after the will-maker dies. (Make a few copies before you do; the court will keep the original.) This isn’t an optional step. By law, most states require that you deposit the original will with the probate court in the county where the person lived within 10 to 30 days after it comes into your possession.
Lots of Americans—more than half, by some estimates—don’t leave a will. So if you can’t find one, the reason may simply be that the deceased person never made a will. It’s not a cause for worry. Whether or not there is a will doesn’t change the need for probate. State law will determine who inherits property that would have passed under the will. And a lot of valuable property isn’t affected by the terms of a will, anyway. For example, property held in a living trust, pay-on-death bank account, or retirement account usually goes directly to the beneficiaries named to inherit it, without probate. Similarly, property owned with someone else, such as a house owned in joint tenancy, generally goes to the surviving co-owner and isn’t affected by the will.
Things can be a little more complicated if you find only a copy of the will, not the signed original. Probate courts want the signed document itself, not a copy. A court may, however, be willing to hear arguments about why the copy should be accepted as if it were an original—for example, a good explanation of why the original document isn’t available and evidence that the deceased person had not changed his or her mind about the terms of the will.
If you can’t find any will, or you find only an old one that you’re sure was revoked, you may be able to prove that the will in effect at the time of death has been lost. If you can also prove what it said—perhaps with testimony from the lawyer who drew it up, or the surviving spouse—the court may accept its terms. You’ll need help from an experienced probate lawyer.
If you have reason to believe that someone has the will but doesn’t want to produce it, you can ask the probate court to order that person to deposit the will with the court. But talk to a lawyer before you go to court—or mention the idea to anyone you suspect of hiding the will.