Executors: How Do You Find The Will?

As the executor or personal representative of someone's estate, one of your first jobs is to find the deceased person's will, if there is one. Once you get your hands on the original, signed will keep a close eye on it.

Make some photocopies and put the original in a safe place, such as a locked file drawer, until you're ready to file it with the probate court. Even if the estate doesn't need to go through probate proceedings, you must still file the original will with the probate court.

But before you can file with the court, you need to locate a valid will. Here are some tips on how to find the will, how to know if it's valid, and what to do if you can't find a valid will.

Where to Start Looking for the Will

Start your search in the obvious places, such as file cabinets, desk drawers, and closets at the deceased person's home and workplace. If that doesn't turn up anything, here are some other places to turn.

Safe Deposit Boxes

If you're an immediate family member, the bank will probably give you access to the box, in the presence of a bank official, to look for a will. If the bank won't cooperate, you can ask the probate court for an order allowing you access to the box only for the purpose of finding the will. (If you don't know whether or not the deceased person rented a box, call the banks where the person had accounts.)

The Deceased Person's Lawyer

If a lawyer drafted the will, that lawyer might have the original or a copy. If you don't know the lawyer's name, go through checkbooks, account statements, and records for the last few years and look for payments to or communications from an individual lawyer or firm. If you know the lawyer's name but don't have an address or phone number, call the state bar association or check its website.

In most states, the law requires anyone who has possession of a will to promptly turn it over to the executor named in the will or to the local probate court.

Other Places to Check

If you've been unable to find the will or identify the deceased person's lawyer, there are a few other places to check, including:

Family and friends. Ask the person's closest friends and family members if they have the name of the deceased person's lawyer.

The local probate court. It's not common, but some people deposit their wills with the probate court while they're still alive.

The legal community. Place a notice in a local legal newspaper or county bar association publication, asking any lawyer who has the will to turn it over to you.

What Does a Will Look Like?

You'll probably recognize the will when you find it: a plain-looking document, typed or printed from a computer, labeled "Last Will and Testament" or just "Will of _______." It could be stapled to a stiff piece of colored paper or in an envelope labeled "Will."

Sometimes, however, wills don't look like wills. Handwritten, unwitnessed wills (called "holographic wills") might look less formal or more like letters or lists. Nevertheless, these handwritten wills can be valid in about half the states. (More on this below.)

If you plan to take the will through regular probate, you need the original document the person signed. Courts generally don't accept copies.

Also, keep an eye out for:

Lists of property items. In about half the states, a will can refer to an outside document to dispose of items of tangible personal property—that is, anything tangible except real estate. So, if you find any document that lists items and who should inherit them, hang on to it.

Codicils. Keep anything labeled "Codicil." A codicil is a document that revises or adds to a will. These days, codicils are rare. Most wills are created on computers, so people who want to change something commonly make a whole new will that takes the place of all earlier ones.

How Can You Tell If a Will Is Valid?

Once you locate it, how do you determine if the will is valid? Although the probate court will ultimately decide the will's validity, it can be helpful to know ahead of time whether the will is legally valid and whether you might face challenges to the will's validity.

To be valid, a will must usually be:

• in writing (which includes typed or printed wills, but not video recordings)
• signed (usually by the will-maker, but the will can also be signed by someone else at the will-maker's direction, in the presence of the witnesses), and
• signed by two adult witnesses (in many states, these witnesses can't be inheritors under the will).

While these requirements are generally true, there's one notable exception: a will that's unwitnessed but in the will-maker's own handwriting and signed—called a holographic will—might still be valid, depending on your state.

While many mistakenly think a will must be notarized, it doesn't need to be. However, having a special notarized affidavit (called a self-proving affidavit) accompany your will can save time during the probate process.

The will-maker must also have been mentally competent when making the will.

What If You Can't Find the Will?

Sometimes, everyone knows a will was drawn up and signed, but it simply can't be found. You might be left with no will at all or with an old one that you believe was revoked by a more recent will.

You might be able to prove the existence of a lost will—and perhaps even its terms—to the satisfaction of a probate court by:

• producing the witnesses who signed the will, and
• coming up with convincing evidence of what the will said.

You should get a lawyer's advice before you go down this path.

If you have good reason to think that someone has possession of the will but intends to hide it, you can sue to force the person to file the will. A lawyer should be able to help you assess your likelihood of success.

If there's no will or your best efforts don't uncover a will, you should still be able to settle the estate. Other documents—for example, pay-on-death beneficiary designations (like bank accounts with named beneficiaries or TOD vehicle titles) or joint ownership deeds—will give you at least some of the instructions you need, and state law will supply the rest by telling you exactly who inherits the property when there's no will.

Learn more about your responsibilities as executor of someone's estate.