Missing Will – What if I Cannot Find it?

Missing Will.

A common occurrence after someone dies is that their estate documents cannot be found. The problem of the “missing will.” They may have been lost, mistakenly destroyed, intentionally revoked, or simply hidden. Regardless of the reason, when someone passes away and their will or trust cannot be located, there is a real problem. Loved ones are not only grieving, but they are left trying to figure out how the deceased intended their assets to be handled.

Another challenge arises when someone who is not a family member was close to the deceased. Without a will, that person is unlikely to receive anything. Intestate succession will likely apply, and the court will make the final decision about who inherits.

One way to avoid this is for the grantor (creator of the trust) or the testator (creator of the will) to notify their successor trustee, executor, and agents about the location of the documents. Estate planning documents must be stored safely, and it is essential that the trustee and executor know where to find them. While some drafting attorneys used to store client documents, that practice has become less common. Many law offices are going green and now store only digital copies of legal documents. As a result, responsibility for safeguarding original documents rightly rests with the client.

When No Documents Can Be Found

Missing will. So what happens when the bank, title company, or court requests your original legal documents, and no one can find them?

Many states follow the common law principle that when a deceased person’s estate documents cannot be found, the presumption is that they were intentionally destroyed or revoked by the grantor or testator. This is especially true if there is evidence that the deceased had the documents in their possession. However, that presumption can be overcome with clear and convincing evidence to the contrary.

Such evidence might include testimony from the deceased’s lawyer, family, or close friends; statements suggesting recent changes made to the estate plan; or proof of a fire, flood, or other event that destroyed the documents. Any credible evidence showing that the grantor or testator did not intend to revoke the will or trust may help rebut the presumption.

Missing Will. What If Only a Copy Can Be Found?

Many courts will accept a copy of executed estate documents. If all interested parties agree that the photocopy reflects the correct version, the probate court will likely permit submission. But if there are disagreements about the validity of the photocopy, it will be rejected. If the copy is rejected and no original is found, the state’s intestacy laws will govern how property is distributed. This outcome is often inconsistent with the grantor’s or testator’s intentions, especially if they intended to disinherit certain family members under intestacy laws. Another reason to ensure documents are accessible.

One of the benefits of having a trust is that they are generally private. However, because they are private, most states do not require that they be recorded or registered.  For that reason, if all trust beneficiaries accept a photocopy as a true copy of the grantor’s most recently executed trust, that may be sufficient. The challenge, of course, is getting everyone to agree. If they don’t, the court will step in.  One reason to avoid court intervention is that the process can be lengthy and costly. 

For the above reasons, make sure your executor, trustee, and agents know how and where to locate your documents. It doesn’t make sense to invest time and money in having documents prepared only to lose or misplace them.

Safeguard Your Documents

The bottom line is simple: to avoid a missing will, keep your estate documents in a safe place and make sure those assisting you know where to find them. As a culture, we are increasingly digitized, but keeping the originals safe remains essential. There is no better way to prove intent than presenting a signed, witnessed, and notarized original document, or a properly executed copy. Each state is different, so understanding your state’s laws is crucial.