What to Do If You Can’t Find the Will After Someone Dies
The days and weeks after a loved one’s death are difficult, as you deal with your grief and begin adjusting to life without your family member. Unfortunately, the mourning period often involves the need to probate your loved one’s estate. Probate can be challenging even if you have the original will in hand. If you are unable to find the original will, or are unsure if there even is a valid will, the situation becomes even more complicated.
If you are in this situation, don’t panic. In this blog post, we will help you to figure out what to do, including how to find out if a will exists, how to find a will in public records, and what to do if you can’t find your family member’s will despite your best efforts.
How to Find a Will
Who keeps the original copy of a will? Usually (but not always), the person whose will it is. Finding a loved one’s will may feel like looking for a needle in a haystack, especially if your deceased family member wasn’t especially neat or organized. Fortunately, most people are somewhat predictable when it comes to their estate plan and important documents, so start looking in the obvious places.
First, take a look at your deceased family member’s home office, desk, or safe. A will is often in some sort of folder or binder that indicates what it contains. If you have access to the person’s computer, search files for “last will and testament” or “estate planning” to see if that yields any information. Ask other family members if they know of a will or its location.
Many people think it’s a good idea to put their will in a safe deposit box at their bank. (Spoiler alert: it’s not, since typically only the owner or their court-appointed personal representative can access the box. If the will nominating someone to serve as personal representative is locked in the box, you can see the problem.) If you know where the deceased person banked, you may be able to at least find out if they had a safe deposit box, though you will probably need an attorney’s help to gain access to the box.
If you need to know how to find out if a will exists, talking to your family member’s attorney is worthwhile. You may have come across an attorney’s contact information while searching your loved one’s home for the will, or you may have to ask friends and family if they knew who the attorney was. Some people keep an original of their will at their estate planning attorney’s office, but at a minimum, the office is likely to have a copy of the will or estate plan. If the attorney who drafted the will has died or retired, the firm may still have his or her files. If not, the county bar association may be able to tell you who took over the lawyer’s files.
How to Find a Will in Public Records
Another option for finding the original copy of a will is to search the probate court for the county where the deceased lived. Some people file their original will with the probate court for safekeeping. If you have the deceased person’s death certificate, the court clerk should be able to conduct a search. If the original will is on file with the court, it can be probated, and you can typically get a copy of it for a small fee.
If you’ve gone through the deceased’s home and/or office, checked their computer, asked family and friends, and looked for their attorney or safe deposit box, you may feel like you’re out of options to find the original will—but don’t give up quite yet. You may still be able to probate a copy of your loved one’s last will and testament.
Can You Probate a Copy of a Will?
The law distinguishes between a signed original will and a photocopy. Typically, only an original will can be submitted to probate. However, under some circumstances, Michigan probate courts will permit a copy of a last will and testament to be probated.
You would need to file a petition to have the copy of the will probated and to have a personal representative appointed. Under Michigan probate law, if the court does not have the original will, the original will (or a copy of an original will probated in another jurisdiction) must accompany the petition. If you cannot produce the original will or a will belonging to the deceased that was probated elsewhere, you will have to state that the original will was lost, destroyed, or otherwise unavailable.
You will also need to provide the court with evidence as to the contents of the unavailable will, and reason to believe that if it was destroyed, it was not destroyed by the deceased with the intent to invalidate it. A probate court’s decision whether to admit a copy of a will to probate is a highly fact-specific one. The more evidence you can provide that the copy of the will accurately reflects the contents of the last valid original will, the more likely you are to prevail.
If the court is unwilling to probate a copy of a will, the deceased’s property will be distributed according to Michigan laws of intestate succession. In addition, any property with beneficiary designations, like insurance policies or investment accounts, will pass to the designated beneficiary outside of probate.
Lessons for the Living
If you’ve read this far, and especially if you are struggling to locate the will of a deceased family member, you may have resolved not to leave your own loved ones in a difficult position after you’re gone. Here are some tips so your family won’t struggle to find a will you’ve left behind:
- Tell your family members that you have an estate plan and where to locate it.
- Do not store your will or estate plan in a safe deposit box or other location your family will have a hard time accessing.
- Consider filing your original will with the probate court for the county in which you live if you are planning to remain there. Let your family know.
- Give your family members contact information for your estate planning attorney. Even if they won’t need that information to find a copy of your will, they may want the help of an attorney whom you trusted to probate your estate.
If you have more questions about how to find a will after someone has died, or about the Michigan probate process in general, please contact Suzanne R. Fanning PLLC to schedule a consultation.