Opening a probate case can be an emotionally and mentally draining process. A Will can greatly speed up the probate process, but it’s hard to know how to move forward when your loved one’s Will cannot be found. There are a few options before filing the probate case as intestate – meaning that the deceased person passed away without a Will. Below are a few suggestions on what to do if you cannot find the Will and what happens if you can’t ultimately locate it.
Best Places to Search for a Missing Will
The number one place to begin searching for your loved one’s Will is in their homes or place of residency. Wills are often kept in safety deposit boxes and either not recovered or forgotten about by the time the owner has passed away. The best step for you to take is to begin your search throughout your loved one’s home to see if you are able to locate a safety deposit box. Make sure to search all of the places where your loved one may have kept important documents such as the file cabinets in their office or desk. If you know that your loved one had a storage unit, make sure to search their storage unit for any storage boxes that could have important documents filled with information or their Will.
If you have searched throughout their home and have not found the Will in their home or storage unit, the next best place to search would be with the decedent’s banks. Your loved one may have their bank information listed on any of their important documents if you are unsure with what bank to begin your search. It is helpful to search for any statements or to go through their wallet to see if there are any debit or credit cards. It is wise to use any currently available information from your loved one’s belongings to try and determine what bank the Will might be held in. Your loved one may have held their Will in the bank’s safety deposit box. If you are unable to acquire your loved one’s bank information, attempt to contact the banks around their residence at the time of their passing. If you end up finding the bank holding your loved one’s safety deposit box, accessing the deposit box will vary depending on the bank or branch. Banks may have specific policies and procedures in place for releasing the key to family members for their safety deposit boxes. Some branches may even require a court order.
3. Lawyer/Law Firm
Another option to locate a missing Will is to search your loved one’s belongings for a contact list that may display a lawyer’s name and information. You may also begin the search by going through your loved one’s bank statements or checkbooks to see if there are any charges for an attorney or law firm. If the Will was drafted by a lawyer, they would more than likely have a copy and be willing to provide one to the family. If you do not know the name of the lawyer(s) who have worked with your loved one, you may want to contact as many estate planning firms local to their residence at the time of their passing.
If you have been unsuccessful with finding the information for an attorney, another option would be to contact any possible advisers that your loved one may have been in communication with. This may include financial advisers, CPA, or insurance agents. They may have the information of a law firm or attorney that could have been used by your loved one.
4. Probate Court
Though unlikely, it is possible that your loved one kept their Will with their local probate court. It is important that you exercise any and all methods to pinpoint the location of the Will. You should attempt to touch base with the probate courts closest to their residence at the time of death as well as all former residences.
5. Will Registry
If you are still unable to locate your loved one’s Will, you may also search the web using a Will Registry. A Will registry will not have a copy of your loved one’s Will, however, it is an alternative place to begin your search for more information about the attorney’s name or law firm that may have been used to draft their Will. If your loved one registered their Will, the information needed may be useful. *Note – most people do not register their Wills, so this is a last alternative.
Next steps if you are unable to locate the original Will
In the scenario that you have exhausted all of the places mentioned and are still unable to locate your loved one’s Will, the Will may be simply lost or destroyed. Your next step may be probating a copy of the Will. According to Florida statute 733.207, should you be unable to produce an original Will, as an interested party you may continue in probating the Will if all you have is a copy. You will need to provide the testimony of two witnesses with no interest in the Will or case who can divulge its contents. Using a copy of the Will is not ideal as it can take a bit longer and is more difficult for the court to approve. However, it is better than nothing.
If you cannot even find a copy, then you are out of luck. The court will not just listen to testimony but needs to see an original or copy of the Will and then determine that it is valid. Oral Wills do not work in Florida. Without a Will, the assets of your loved one’s estate will be transferred to living relatives (heirs) or beneficiaries. In Florida this would mean that priority between relatives would belong to the decedent’s living spouse, children, then parents respectively. If the decedent had children from a relationship other than that of their spouse, the assets would likely be split evenly with 50% going to those descendants and 50% going to the spouse. Each case is a little different and arguments can be made, but as a general rule of thumb, without a Will, a person’s stuff will go to their closest living relatives.
There are recommended steps you may take to ensure that you find your loved one’s Will. The best suggestion is to search throughout your loved one’s home and belongings. Another option would be to contact any individuals closest to your loved one that may be able to provide information as to whether or not they ever mentioned a location of the Will or an attorney who they have been in contact with. Using a Will Registry or contacting the local probate court may be useful to try as well. If you are unable to locate the Will for your loved one, you would still be able to proceed with opening a probate case. The probate case would be opened as intestate – meaning no Will was remaining from the decedent.
You may contact us today if you have any further questions about opening a probate case in the state of Florida and we would be more than happy to help schedule a complimentary consultation with our attorney.