What happens when you lose your will?

Do you know what happens if you lose your will?

You may have a safe, a filing cabinet, or a fireproof box where you keep all of your important papers.

When you die, your executor needs to file your original will with the court to open the probate of your estate, but what happens if your executor can’t find the will?  The first thing the executor should do is to try to find out what happened to the will.  Did you revoke the will or was it just lost or destroyed?  If you had revoked your will, it no longer has any control over how your property will be distributed, and, even if it is found, it should not be submitted for probate.  If your will was simply lost or accidentally destroyed, it still reflects your wishes.  A copy of the will can be submitted to the court, and the court may (but does not have to) open a probate based on that copy.

In Washington, you revoke your will by either (1) executing a new will which contains language explicitly revoking the old will or which is inconsistent with the old will or (2) by your will being “burnt, torn, canceled, obliterated, or destroyed” by you or by someone else doing it at your direction and in your presence.  If someone else destroys your will for you, you’ll need two witnesses to prove that it was your intention to revoke the will.

If your executor submits a petition to the court asking that a copy of your will be used to open a probate of your estate, he or she must set a hearing and give notice of that hearing to all of your heirs at law (those who would inherit if you died without a will) and all of the beneficiaries named under your will.  If all parties give their approval, the court can approve the petition right away.

In considering whether to admit a copy of your will to probate, the court starts its analysis with the assumption that your original will can’t be found because you revoked it.  To get a copy of your will admitted, your executor will have to provide “clear, cogent, and convincing evidence” to the court that (1) you did not intend to revoke your will and (2) that the copy being submitted to the court is a true copy of the will.

Showing that you did not intend to revoke your will can include evidence that your will was accidentally destroyed, evidence about how it was lost, or testimony from a disinterested third party that the will was your will and that you didn’t plan to change it.  Evidence that the copy is a true copy might include affidavits from the original witnesses to your will stating that the copy is the same document they witnessed or an affidavit from your attorney stating that the copy is the same will that the attorney drafted for you.

If the court rules that the copy is a true copy of your will and that you had not revoked the will, your executor can be appointed and start administering your estate.

So, now that we know that losing your will can make things much more complicated for your executor and might mean that your will might not be accepted to probate, what can you do to make sure that your will doesn’t get lost?  The first thing to do is to find a good, safe place for your will.  The second thing is to let people know where that place is.

You may have a safe, a filing cabinet, or a fireproof box where you keep all of your important papers.  All of these are good options, but someone will need to have the combination to the lock or know where you keep the key.  Some attorneys will also hold original documents for their clients, and that may be a good option for you.

One final note on safe deposit boxes.  While they are great places to store important documents, you really need to put someone else—someone you trust—on the account if you are going to store your will there.  If no one else is on the account when you die, no one has the authority to open the box to get your will.  Once your executor is appointed, he or she will have the authority to open that box, but the executor needs the will (that’s in the box) to get authority from the court to open the box to get the will to get the authority.  As you can see, this is a bit of a Catch 22.

Even if your will is lost, your executor can open a probate with a copy, but it’s much better to not lose the will in the first place.