Can’t Locate The Will? Know What Happens Next

Despite advice to the contrary, not everyone gets around to making a last will and testament. For survivors, being unable to locate the will can be frustrating. Read on for some guidance on what to do next when a loved one's will is nowhere to be found.

If You Believe There is a Will

Some loved ones have knowledge of the existence of a will but cannot locate it. After looking in the safe, file cabinet, desk drawers, and the bank's safe deposit box, try contacting the attorney that made out the will. They may have the original or a copy of the will. However, keep in mind that some states require the original signed version of the will and won't accept copies.

Probate Without a Will

If you don't find a will, your loved one's estate must still be probated, unless the value of the assets of the estate are below a certain level, which varies by state. The probate process without a will is roughly the same as with a will, though it might be lengthier in some cases. The process is different enough, however, that you will probably need a probate lawyer to file the estate and guide you along. You will need someone to agree to oversee the estate just as an executor might oversee probate with a will. In many cases, the paperwork filed with the probate court is known as an estate petition rather than a will with someone being named as administrator rather than executor.

Laws of Succession

When no will exists, the assets of the deceased are handed down using a list of relatives in order of their importance. Though each state will have slightly different rules of succession, it mostly goes in the order below:

  1. If no living heirs are located, the estate goes to the state.
  2. If the deceased was married, the division depends on the type of state. In most cases, assets are divided between the spouse and adult children.
  3. If the deceased was unmarried or widowed and had no children, the estate goes to the surviving parents of the deceased. If no living parent exists, it will be divided among siblings of the deceased. If there are children of the deceased, the estate is equally divided between them. If any of the children have passed away, that share of the estate goes to the children of the child (the grandchildren of the deceased).

Speak to a probate lawyer near you about your loved one's estate to learn more.