I have had several cases where my client had trouble locating the decedent’s (a.k.a. deceased person’s) Will and or trust. So naturally, this caused them some concern, and the question arose: What happens if I can’t find the Will?
Before you panic, there are some things you can do to either find the Will or find a copy. The first and most obvious is to search the decedent’s files and other belongings. It’s not uncommon for a person to have placed it in a stack of papers or hidden it somewhere out of the way (one of Aretha Franklin’s wills was found under a couch cushion). It’s unlikely a will or trust was thrown away or destroyed, so odds are it’s around somewhere, and a thorough search will usually uncover it. You can also check with the bank to see if the decedent had a safe deposit box since wills are often stored there.
If you’ve searched everywhere and still can’t find it, see if you can find the name of the attorney who drafted it. Many attorneys keep copies of their clients’ wills and trusts for precisely this reason and can give you a copy if you can prove you’re the executor or trustee of the decedent’s estate. Some law firms even keep duplicate originals, which would make your life easier (for the record, I’m not one of them – I don’t want the liability).
If you can’t find the name of the drafting attorney in the decedent’s files, check the records at the County Recorder’s Office. For example, if the decedent’s house was moved into the trust, the attorney likely helped, and their name may appear on the document. Since real estate property transfers are public record, you don’t need to prove anything to get access – you can either request a copy online or go to the County Recorder’s Office and look it up in their database.
Things get a bit trickier if the attorney is no longer practicing – they may have given their files to another law firm, but maybe not, so a bit of legwork is required. You may want to enlist the help of another estate planning attorney at this point – they can ask around, and they might even know what happened to the attorney in question. For example, one time, I found the name of the drafting attorney on the client’s Grant Deed, and I remembered from a previous case that a specific law firm had purchased that attorney’s practice when the attorney retired.
If you can find a copy but not the original, you can make do, but you may have to notarize a declaration that you can’t find the original, and you believe this to be an accurate copy of the decedent’s Last Will or trust.
In a worst-case scenario, where you have exhausted all options but cannot find a will or a trust (original or copy), you will need to go to the Probate Court, and some level of probate may be necessary.
On that cheery note, I will leave you with my email, so you can reach out if you have questions or need help locating someone’s Will or trust: kaway@kawaylaw.com.
