How to Handle a Situation in Which a Will Cannot Be Located

How to Handle a Situation in Which a Will Cannot Be Located

A will is created with the expectation that the testator’s wishes are carried out after they die. Ideally, the testator will keep the will in a safe, and the administrator of the estate or another trusted person will know exactly where to locate it. Some testator’s choose to leave the will in the care of an estate lawyer or place it in a safety deposit box. 

Occasionally, a will is lost. The testator might have lost it and was unaware, or failed to understand the importance of preserving it. It might have been disposed of during the clearing of the home, or even purposely destroyed by someone, such as a beneficiary or presumed beneficiary who thought the will was unfair or did not reflect their interests. 

Family members might have known about a will, and could have even known what it said. However, if the will does not exist in its tangible form, there is a good chance that all those involved will face a will challenge. If you or your family know that a will was left but cannot locate it, you should speak with a qualified estate lawyer right away. There might be options to ensure your loved one’s wishes are carried out, but specific requirements must be met under state laws. 

What If You Cannot Find the Will
To establish the validity and existence of a will without the actual legal document, your estate lawyer will need to petition the court. In most states, there are laws that spell out what is needed to establish the terms of a missing, lost, or destroyed will. In general, the following will need to be applicable.

The content of the will must be proved by two witnesses who do not have an interest in the estate. 

If a copy can be provided, it should be proved by at least one of these witnesses. 

When there is a copy of the will, one or both witnesses will be required to testify that the submitted copy is accurate, or that he or she signed and witnessed it. If there is no copy of the will, things may become more complicated because:

  • Two witnesses will be required. 
  • It might be difficult to identify the witnesses if there is no copy. 
  • The witnesses must be able to establish the terms from memory. 

Another obstacle to overcome when a will has gone missing and there are no copies, is that the court often presumes that the will has been intentionally destroyed. This could have been done by the testator who wished to revoke the will. In this case, the party seeking to establish the will must be able to prove that the testator did not revoke the will by destroying it. To prove this, one of the following may need to be established:

  • There is evidence suggesting another person who benefited from the wills’ destruction was responsible for destroying it. 
  • The will was accidentally destroyed. 
  • The will existed after the testator’s death; therefore, they could not have destroyed it. 
  • The testator was incapacitated or lacked testamentary capacity; thus, could not have made a valid revocation of the will. 

In a situation that involves a missing or destroyed will, you will almost certainly need an estate planning lawyer, like an estate planning lawyer, to help guide you through the legal proceedings that may follow.