Executors: How Do You Find The Will?

What if you're not even sure there IS a will? Here are some tips on how to conduct your search.

As executor, 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. Then you’ll need to file the original will with the probate court, whether or not you plan to conduct a probate court proceeding.

Where to Start

Start your search in the obvious places such as file cabinets, desk drawers, and closets at home and work. If that doesn’t turn up anything, here are some other places to turn:

Safe deposit boxes. If you are 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 may have the original or a copy. If you don’t know the lawyer’s name, go through checkbooks for the last few years and look for payments to 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.

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 to Look For

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 may 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, which are valid in about half the states, may look more like letters or lists.

If you plan to take the will through regular probate, you need the actual document the person signed. Courts generally do not 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. Also 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, which takes the place of all earlier ones.

If You Can’t Find It

Sometimes, everyone knows a will was drawn up and signed, but it simply can’t be found. You may be left with no will at all, or with an old one that you believe the lost one revoked.

You may 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 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. Obviously, someone up to no good might promptly "lose" the will if pressured.

If your best efforts don’t uncover a will, it’s not a problem. Other documents—for example, living trusts, pay-on-death beneficiary designations, or joint ownership deeds—will give you at least some of the instructions you need, and state law will supply the rest.

To learn more, see What Does The Executor Do When There's No Will?

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