Sometimes a testator neglects to tell her loved ones or the will's executor where to find her will in the event of her death. This can leave heirs and beneficiaries in a difficult position at a time when they are already grieving. Some states, like Texas, have provisions written into their statutes to address the issue of being unable to locate a will. Even then, the outcome may depend on whether or not you’ve been able to find a copy or if no indication of the testator’s last wishes exists at all.
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Broaden Your Search
If you have looked in obvious places and have come up empty, try more creative searching. Some states allow a testator to register his will with the court before his death, so call the courthouse in the county where he lived to see if he did this. Contact his bank to see if he kept a safe deposit box. The bank may or may not be willing to tell you -- and probably will not allow you to enter it without a court order -- but an attorney can assist your search if a safe deposit box can be located. Check with the deceased’s attorney to see if she is holding a copy of the will, although most lawyers do not retain the original. Ask close friends, business associates and other family members who may have acted as witnesses to the will, and therefore may have some idea about where to look.
If You Find a Copy
If you find a copy of a will, though not the original, there is some possibility that the court will probate it, depending on the laws of the state where the testator died. Generally, proof of her signature as well as the signatures of the witnesses is required. You may also have to prove to the court that the deceased still had a strong relationship with her main beneficiary and never gave any indication that she wanted to change the will.
Assumption of Revocation
One drawback to just finding a copy of a will and not the original, is that many state laws assume that the testator revoked the will by destroying the original, which is legal in most states. This is especially true if the witnesses and his family report that the will was last known to be in his possession, not left with a bank or an attorney. In this case, if you find the original of an earlier will, most states will order that the earlier one is valid and probate it.
In a worst case scenario, if you can find no will and no copy of a will after a diligent search, state laws treat the testator’s estate as though she died without making one. This is called “dying intestate.” The court will appoint an executor and will distribute her assets to her immediate heirs according a formula prescribed in the state’s laws.
References & Resources
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