Missing Wills and Probate

Dealing with a missing will during the probate process can be challenging, but it’s not uncommon. When a will is missing or cannot be located, the probate court must determine how to proceed based on the available evidence and applicable laws. As a Folsom lawyer specializing in probate, I sometimes have to advise clients on situations where they believe that the deceased executed a will, but they do not know where it is or how to get to it. Here are steps to take if you’re faced with a missing will during probate:

1. Search Thoroughly:
   • Conduct a thorough search of the deceased person’s personal papers, records, and belongings. Check their home, safe deposit box, attorney’s office, and other places where important documents may be kept.
2. Contact the Attorney:
   • If the deceased person had an attorney who helped draft the will, contact the attorney’s office to inquire about the existence of the will and its location. They may have a copy or information about where it was stored.
3. Contact Close Relatives and Beneficiaries:
   • Talk to close relatives and beneficiaries to see if they are aware of the will’s location or if the deceased person mentioned its whereabouts.
4. Check with Local Probate Court:
   • Contact the local probate court to see if the will was filed with the court prior to the person’s death. Some people choose to deposit their wills with the court for safekeeping.
5. Review Digital and Online Records:
   • Search the deceased person’s digital records, email accounts, and cloud storage for any electronic copies of the will. Some individuals store important documents electronically.
6. Review Previous Attorneys:
   • If the deceased person had multiple attorneys over the years, contact their prior attorneys to inquire about the existence and location of the will.
7. Check with Financial Institutions:
   • Contact banks and financial institutions where the deceased person had accounts or assets to inquire about the existence of the will.
8. File a Petition with the Probate Court:
   • If you have exhausted all efforts to locate the will and still cannot find it, you may need to file a petition with the probate court to proceed with the administration of the estate. In the petition, you can explain the efforts you made to locate the will and request that the estate be probated as if there is no will (intestate).
9. Probate Without a Will (Intestate Succession):
   • If the court determines that there is no valid will or that the will cannot be located, the estate will typically be probated according to the state’s intestate succession laws. This means that the assets will be distributed to heirs according to a predetermined order of priority established by state law.
10. Appoint an Administrator:
    • In cases where there is no will, the court will appoint an administrator to oversee the estate’s distribution. The administrator’s duties are similar to those of an executor named in a will. In California, this individual may be referred to as a “personal representative.”

Conclusion

Dealing with a missing will can be a complex and legally intricate process, and it’s crucial to follow the appropriate legal procedures in your jurisdiction. An experienced probate attorney in Folsom can provide valuable assistance and guidance throughout the process to ensure that the deceased person’s estate is handled correctly and in accordance with the law. If you have any questions about missing wills and probate, contact Thapar Law at 916-579-0605 or send us a message.