Sometimes, an individual dies without making a will. This person is considered to have died intestate. Often, it is unclear if they made a will at all.
The first thing to establish is whether the will exists or not. In some cases, a person who is not the deceased or the executor may have the will. They may have filed it with the superior court. If you find this to be the case, then a copy is required to be mailed to the executor.
Time to Search
Sometimes a will is not handed over before the person passes. In this case, it is time to start searching. The place to begin is with the deceased’s files. Search anywhere that they have kept paper records, particularly their office, closets, or libraries. Also look for any notes that might give hints as to where they may have stored their will or other important documents.
It is also extremely worthwhile to contact the deceased’s attorney. They may have a copy of the will on hand. This is a frequent situation, as they would have had to work with their attorney to draft a copy of the will in most cases.
Next, it is time to speak to any close friends or confidants that the deceased may have had. For a myriad of reasons, people sometimes choose to leave their wills with friends. If they did not, they may have told them where they kept their records.
Lastly, check in with their business associates or employer. While less common, these people may have access to places where the deceased stored their records. They may also have had conversations with them about where to do so.
This survey is the first step that you should take in your search. During your investigation, you may find the key to a safe-deposit box or security box. There are special steps that need to be taken to ensure that you are acting in a lawful manner.
Checking a Security or Safe-Deposit Box
Safe deposit boxes in a financial institution may be held in the deceased’s name. They might also be held by a group of people, including the deceased, where everyone who was associated with them has passed. California law allows a person who has a key to open the box before the will is read and letters testamentary are issued, with the court’s permission. To do this, you need:
- The key to the box.
- Proof of the deceased’s death. This can be either a certified death certificate copy or a written statement from the coroner, hospital, or treating physician where they died.
- Proof of the identity of the person seeking access. This can establish that they were personally known by the person holding the box.
If you must do this, the financial institution will:
- Keep a record of your identity.
- Watch you open the safe deposit box.
- Make a photocopy of any wills or other documents removed from the box.
- Keep those copies in the box until they are removed by the estate.
What If It Still Cannot Be Found?
In this case, after a long search, the court is allowed to presume that the deceased has destroyed the will. A photocopy is not allowed to take the place of a duplicate original. If you cannot find the original or a duplicate of the original, the estate falls into intestacy. There is a different body of laws that determines who will receive what from the estate by default.
- Intestacy: In intestacy, with no will, there are different conditions depending on your family circumstances.
- Single People: For single people, the distribution of your estate depends on who is related to you and who is still alive. If you have children, then everything in your estate will go to them. However, if you have no children, then everything in the estate goes to your parents, or 100% to your surviving parents. If your parents are not alive, then it will go to your siblings. If your siblings are not around either, it will go to your nieces and nephews, and so on down the line.
- Married People: If you are married and have children, your estate will pass to your spouse if you owned it in common. Otherwise, it will be split evenly between your spouse and children if you had separate property.
FAQs
Q: What if the will is not destroyed?
A: It is allowable for potential heirs to bring evidence to the court that the will was not destroyed. This is usually a more complicated situation. The court will examine this evidence and make a ruling that can validate any particular evidence found. They will then decide whether it is sufficient.
Q: What happens if a will is missing a page?
A: In this case, your attorney can ask the judge to accept all the pages that are available as complete as long as they clearly show the intent of the deceased as to who is to receive what property. The judge may allow or deny this depending on how much of the will is missing and whether it seems to honestly reflect the intent of the deceased.
Q: What is a mirror will?
A: A mirror will is a pair of wills that have almost the exact same provisions. These are most commonly done by married couples. The contents of one spouse’s will are a nearly exact copy of the other, “mirroring” it. This way, no matter which partner passes first, the same actions will be taken.
Q: Are wills public records?
A: Any will that is filed with the court is a public record. Anyone can view and read it. This is why trusts are sometimes used by those who do not want the contents of their estate to be made public. The original will be held by the court in perpetuity. In fact, for those willing to pay a small fee, a copy of the original will can be obtained.
Contact Quinn & Dworakowski, LLP
If you are dealing with a situation where a will has been lost, or there is doubt about its existence, please do not hesitate to reach out to our office. These can be difficult times, and we are here to help. Contact Quinn & Dworakowski, LLP today for help with a missing or uncertain will.
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