After the death of a loved one, several matters will require immediate attention. Finding the last will of the deceased is generally a priority. However, while this may sound like a simple enough task, most find that it rarely is.
For various reasons, ranging from the natural secrecy that surrounds will-making to a simple error, it can be easy to lose track of a will. While most solicitors advise that testators (a person making a will) deposit their will in an obvious place such as a bank or with their solicitor, some choose to be more imaginative when storing their will. More often than not, the survivors of the deceased will have their hands full enough determining if there was a will in the first place.
It will be necessary to act speedily to locate the will due to inheritance tax limits when applying for a grant of probate in England and Wales. This article details all you need to know about how to find a will, and what you should do if the will cannot be located even after dedicated effort.
How does a will get lost and who has the right to access a copy before probate?
Legally, the named executors of a will are the only ones with the rights to access the final will and testament of a deceased before grant of probate. A will is a private document that is accessed only by the testator before their death. After their death, only the executors will have access until probate is granted. Once probate has been issued by the registry, the will becomes a public document and anyone can apply for a copy, including named beneficiaries.
Before an executor can dispose of a deceased person’s estate, they have to apply for a grant of probate at the probate registry office. Probate is granted when the deceased person has the property that is worthy of probate. Property is typically divided into probate assets and non-probate assets. Probate assets are the property solely owned by the deceased person while non-probate are assets jointly owned by the deceased and others.
The will and last testament of the deceased are essential documents to the probate process, as, without them, the probate registry will not allow the estate to go into the hands of named beneficiaries. An estate for which probate has not been issued can be a challenge for executors, especially if the estate has some worried but persistent beneficiaries.
Sometimes, however, a will may be lost due to any of the following reasons:
- The deceased had some last-minute changes to make to the will, including changing its storage location, and the person died before they could disclose the new one.
- The deceased stored the will in their home and informed the executor, but there was a fire and the will was destroyed.
- There was a change of ownership at the law firm holding the deceased’s will.
- The deceased intentionally revoked the last will and testament by destroying it.
So to make executors’ lives easier, it is crucial to search for the will and with it, apply for a grant of probate. Once probate has been granted, the executor can begin to dispose of the estate’s property, including all estate accounts, and give specific gifts where such bequests are made to the named beneficiary.
How to find a lost will
When you begin searching for a lost will, the first thing to understand is that the will you are looking for is the signed and witnessed original last will and testament. If you are unable to find the documents, the chances are high that the probate registry will treat the estate as though its late owner died intestate i.e., without a will. If this happens, the registry will distribute the estate under the Rules of Intestacy. When there is no will a different application process is needed called letters of administration.
To avoid this, try locating the lost will through any of the following ways:
1: Search the house from top to bottom
You should search the house from top to bottom sometimes, people tend to keep important documents in as close proximity to themselves as possible. So check where your loved one typically hides stuff – and some not-so-typical hiding places too! Check filing cabinets, desk drawers, closets, wall or floor safes, garages, glove compartments, and library shelves, and even between pages in a book – make the process as thorough as possible.
2: Check safety deposit boxes
It might be that when you went through the house, you did not find the will, but found something else – the key to a safety deposit box. If you did, call every bank your deceased had a checking or savings account with in order to locate the safety deposit box. Note, however, that when you find the bank, you might need a court order before they will allow you to access the box. If you need advice on how to go about this, we can help you.
3: Maybe you saw a business card or letterhead of a solicitor
The chances are high that this is the solicitor that helped your loved one draft the will. Reach out to them through the contact information on the business card or letterhead. You may also need to search all chequebooks to see whether any payments were made to any law firms while the deceased was alive. These crumbs could ultimately lead to your locating the will.
4: Try other advisers
If you did not find any information about a solicitor or payments to any law firm, search for other parties whose advice your loved one might have sought such as financial planners, CPAs, insurance agents, or respected clergy, if your loved one leaned toward that. It is possible that one of them may know which attorney your loved one used.
5: Talk to friends and other family members
It is human nature to have a friend or friends who also stand as close confidants. So, it is possible that your deceased may have confided in some friends about where they kept the will. It is also possible that they had had a couple of these friends stand as witnesses to the signing of the will, thus knowing who drafted it.
Some of them are:
- The Secretary of the Local Law Society: This is a directory of local law societies in England and Wales. You can reach out to them and ask if they would kindly check with their local members for any information regarding the document you are searching for. They will need you to provide the full name, date of birth, and addresses of your loved one may have lived.
- The Probate Registry Office: The probate registry keeps records of some wills, and yours might be one of them. You can also check if a grant of probate has been issued by completing a free search at www.gov.uk/search-will-probate.
If a grant of probate has been issued concerning your deceased’s estate, the Will is now a public document and you can obtain copies from the probate registry. If the probate registry does not have a copy of the will, they automatically set up a standing search for a period of six months.
Note that you will have to pay a fee for this service. Also, you can extend the period of standing search if you pay a further fee. You can use this method to search for a probate record in England and Wales only. You will also need the death certificate to run this standing search.
- The Society of Will Writers: They store several documents for their current and past members who have retired and have members all over the country. Thus, they might have the will in their storage or advice you on the person who wrote it. So, send a message to their Custody Department through their email inquiry form and they might retrieve the document from their store or send messages to their members in the relevant region.
- The Solicitors Regulation Authority: They store a large number of wills where the solicitors that wrote them are either retired or no longer in business. If they do not have the will in their possession, they may advise you on who has taken over the firm that originally wrote the will.
- Certainty, the National Wills Register: This probate service provides a registration service, instead of storage. The testator, while they were still alive, must have registered the will with them. So when you need to find the will, you will simply need to go through their records. If the will is registered with them, they will confirm its existence and tell you where it is.
More on Solicitors Regulation Authority (SRA)
The SRA will require some basic information from you to help you to locate the lost will. Thus, you will fill a form and input the following information:
- The name of the firm the testator used
- The name of the solicitor they dealt with directly (though they don’t always require this)
- The year in which the testator wrote the will if the will was written earlier than 1993.
Sometimes, a law firm may move, close, or merge into another. In cases like this, the SRA will have the data on who the successor firm may be or failing that, know where the firm’s files are kept. If they do not know the successor firm or the location of the former firm’s files, they will search for solicitors who worked at the firm at the time of closure. If any of them is available and still practising, they will provide you with contact details.
What if you find a copy instead of the original will?
The easiest way executors can get a grant of probate is if the original copy of the will is presented. Except where executors take legal action to make it possible, a duplicate copy is generally not accepted. If you cannot obtain the original copy of the will, the probate office will presume that the deceased intentionally revoked the will and probate will not be granted.
To back this presumption, the probate registry will attempt to trace the original will to its last known location. If they find that the will was last seen with the testator, they will assume that the reason the original will is now missing is that the testator destroyed it before dying with the intent to revoke it. This assumption will be the registry’s position unless the executors are able to prove circumstances that lead to a contrary conclusion.
If the executors could not contradict the registry’s presumption, any copy of the will or even a recounting of the will from witnesses would not hold, and the non-original will copy likely will not be sufficient. Hence, probate will not be granted and the estate will be subject to the rules of intestacy, which may be contrary to the deceased’s wishes.
Thus, the registry will accept a copy of a deceased’s will if there is clear evidence that the deceased did not intentionally revoke the will and that original was just lost. The evidence may include declarations that the testator did not have a change of mind and that their state of mind while making the declaration was whole.
Conversely, if the probate registry cannot trace the original will to the custody of the testator, they will allow the executor to put a copy of the lost will to probate unless there is genuine dispute and evidence arises to show that the testator did intend to revoke their will.
Providing that circumstances indicate that a copy of the will should be passed into probate, the probate registry proceeds in accordance with the procedure set out in rule 54 of the Non-Contentious Probate Rules 1987. Under this rule, an executor may apply to the probate registry to accept the copy of the will as the deceased’s last will and testament. The only party eligible to file this application are the named executors
The evidence should include the following:
- The circumstances in which the original will appeared to be lost, including when it was last seen.
- A documentation of all the attempts that the executor has made to locate and retrieve the original will.
- Details of any beneficiaries who will benefit from the registry subjecting the estate to the Rules of Intestacy. This would include details of any beneficiary who stood to gain a lot if the copy of the will was not proved and whose gains would be reduced if the registry accepted the copy.
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If you want to know more about how to find a lost will, please reach out to us. We will be happy to assist.
