Finding Out if a Decedent Had a Will

After someone dies, the person most likely to wrap up the decedent's affairs is generally a close relative or loved one. One of the first tasks should be looking for a will.

If one exists, the goal should be to keep it safe and then turn it over to the probate court within a prescribed time period, usually within 10 to 30 days after finding it. (This timetable can vary by state.)

Because an individual's will is a specific set of instructions about how one wishes assets and property to be distributed to beneficiaries after one's death, it is assumed that its author would make the finding of the document by his or her survivors a matter of relative ease.

The truth is that not only do 40 percent of Americans die intestate – without a will at all – sometimes wills that do exist are lost or are hard to find. While it is always advisable to keep a signed will in a safe place, such as at a lawyer's office, in a fireproof safe at home, in a safe deposit box – or else leave instructions with someone about the will's location – that's not always the case.

Some individuals leave their wills in a desk drawer, a filing cabinet or a box of papers. Maybe they intended to put it in a more prominent place but never actually got around to doing so. Some individuals prefer to have their after-death wishes remain private while alive, and thus don't advertise that they even have a will or where it might be found.

Some individuals leave their wills with the person named as their estate's executor, since that is the person most likely to initiate probate proceedings by introducing the will in court. But that person may have misplaced it, especially if it has been years between receiving the will and the death of the testator.

Looking for the Will

Unless a survivor knows exactly where to locate a decedent's will, he or she must search for it. The most likely places are those mentioned above: among the decedent's personal papers; at his or her lawyer's office; or quite often in a safe deposit box at a financial institution.

While a safe deposit box is the ultimate in safekeeping, only its owner has legal access to it. This can present a problem if, for instance, the key is unavailable, or for some reason, a bank won't cooperate. However, state laws often allow a decedent's spouse, parent or adult descendant to open a decedent's safe deposit box, upon providing proof of death, if the object is to find a will.  In some situations, though, a court order may be necessary to access the box.

In many cases, a will was drafted with the help of an attorney. If that person is known to the survivor, he or she should be contacted and notified of the decedent's death. If a will does exist, and the attorney has it, he or she is required to turn it over to the probate court and provide a copy for the survivor.

In rare instances, the decedent may have deposited the will with the local probate court. In some cases, it may be necessary to publish a notice in a newspaper, or county bar association newsletter, announcing the death and asking for any information about the decedent's will.

Finally, if there is reason to believe that someone has the will but doesn’t want to produce it, a probate court judge can order that person to deposit the will with the court.

Why Finding the Will is Important

A will is essentially a set of instructions about how a person wishes to bequeath his or her earthly goods to survivors, how business affairs are to be settled, and/or how financial arrangements are to be administered after death. Without a will, there can be no executor to administer the estate or carry out those wishes to the fullest possible extent. The probate court, along with a court-appointed administrator, will then be responsible to dispose of the decedent's estate.

But without a will as a guideline, the probate court must rely upon the state's intestacy laws, settling the estate and distributing its assets according to specific statutory requirements. The desires of the decedent cannot be respected, simply because they are unknown. Also, without a valid will, beneficiaries may not receive inherited property to which they feel entitled, and probate can become lengthier and more costly.

Types of Wills Admitted

While there are standard will documents drafted by an attorney, as well as an increasing number of a will forms available online, a valid will may take different forms. For instance, a will simply may be a handwritten piece of paper, signed by the testator but not witnessed. Some states accept these "holographic wills" as long as it can be proved that the testator actually signed it and had the mental capacity to create it.

Sometimes only a copy of the original signed and witnessed will can be located. However, a probate court might decide to accept the copy if there is a good reason why the original isn't available, as well as evidence that the decedent had not changed his or her mind of its terms before dying.

In some states – Florida, for example – if a will is lost or destroyed but has been known to exist, its contents may be proven by the testimony of two disinterested witnesses who knew of its terms.

An oral will is will that is spoken rather than written. While, historically, oral wills have had legal standing in some jurisdictions, the majority of states, fearful of fraud, do not recognize oral wills and will not admit them to probate.

If a will or codicil is found after administration of an estate has begun, that document may be admitted to probate upon petition by any "interested person." However, if the will is discovered after the estate is formally closed, the "order of discharge" will not be revoked and the estate will not be reopened for further administration.