A Last Will & Testament is one of the most important legal documents you will ever create. It outlines your wishes for the distribution of your assets after your death and appoints guardians for any minor children. However, life is unpredictable, and documents can sometimes be misplaced, lost, or even destroyed. If you lose your Last Will & Testament, you need to take immediate action to ensure your estate is handled according to your wishes.

Assess the Situation

The first step is to assess whether the will is truly lost. Sometimes, people believe they have lost important documents when they are merely misplaced. Start by conducting a thorough search in the places where you typically store important papers. Check safes, filing cabinets, desk drawers, or any secure storage containers where you would logically keep legal documents. If you have a safe deposit box at a bank, ensure that the will is not there.

Additionally, reach out to any individuals who might have a copy of your will. In some cases, the attorney who drafted the will may have retained a copy for their records. Contact them and inquire if they still have the original or a copy of the document. If you gave copies to your executor or close family members, they might still have them, which could resolve the issue easily.

Understand the Legal Implications of Losing your Will

If you cannot locate the will after a thorough search, the next step is understanding the legal implications of its loss. In most jurisdictions, the court assumes that a will that cannot be found was intentionally destroyed by the testator, meaning the person who created the will may have revoked it. If this happens, the estate may be handled as if no will exists. This is known as intestate succession, which means that state laws dictate how your assets are distributed.

In intestate succession, your property is divided among your closest relatives, typically your spouse and children. If you have no spouse or children, the estate may pass to other family members like parents or siblings. This distribution may not align with your wishes, which is why it is crucial to take steps to avoid this situation. The risk of intestacy makes it all the more important to ensure you either recover your will or create a new one.

Steps to Take if You Can’t Find Your Will

If your will is truly lost, here are the steps you should take to resolve the situation:

1. Create a New Will

The most straightforward solution is to create a new Last Will & Testament. When drafting a new will, ensure that it clearly revokes any previous versions. This will prevent any confusion if the lost will is found later. Most wills include language like, “I hereby revoke all prior wills and codicils.”

When creating a new will, you will need to gather all the necessary information, just as you did with your original will. This includes naming an executor, identifying your beneficiaries, and specifying how you want your assets distributed. If you have minor children, make sure to include provisions for guardianship.

Once your new will is completed, sign it in the presence of witnesses and, if required by your state, a notary public. Keep this will in a secure location, and consider giving copies to trusted individuals like your attorney, executor, or close family members.

2. Search for Electronic Copies

Some states allow for electronic wills or scanned copies of wills to serve as the original in certain circumstances. Even if your state does not recognize electronic wills, having an electronic version of your will may help demonstrate your intent. If you have a scanned or digital copy of your will, consult with an attorney to understand if it can be admitted to probate. While it may not hold the same legal weight as an original, it could serve as evidence of your wishes, especially if there are no challenges to its validity.

3. Request a Copy from Your Attorney

If your will was prepared by an attorney, they may still have a copy. Attorneys often keep copies of important legal documents like wills for their clients. Contact the law firm that prepared your will and request a copy. While it may not be the original, a copy could be presented in court, though this process may be more complicated. The probate court would need to be convinced that the copy is valid and that the original was not destroyed with the intent of revoking it.

Provide Evidence to the Probate Court

In the event that the original will cannot be found, and a copy is all that remains, the court may allow the copy to be submitted for probate under certain conditions. You will need to prove that the will was not destroyed with the intent to revoke it. Providing testimony from witnesses who can confirm the will’s existence and your intentions regarding your estate can be critical. You may also need to offer a valid reason why the original will is missing.

Gather any supporting documents that could substantiate your claims. These could include letters, notes, or other communications indicating your intentions at the time you created the will. The goal is to provide as much evidence as possible to demonstrate that the copy accurately reflects your wishes.

Preventative Steps for the Future

Losing your will can create significant complications, but there are steps you can take to prevent this from happening in the future. First, keep the will in a safe and secure place. A fireproof and waterproof safe in your home is a good option. Alternatively, a bank’s safe deposit box is a reliable place to store the document.

Make sure your executor and a trusted family member or attorney know where the will is located and how to access it. You may also want to consider storing a copy of your will with a digital service that specializes in safeguarding legal documents. Some services allow you to upload your will and other important files, ensuring that they are available when needed.

Additionally, review your will periodically to ensure it still reflects your current wishes. Life circumstances, such as the birth of children, divorce, or changes in financial situations, may prompt you to make updates. Each time you update your will, follow the legal formalities of signing it with witnesses and a notary if required.

Conclusion

Losing your Last Will & Testament is a serious matter, but it is not an insurmountable problem. By acting quickly, you can ensure that your estate is still handled according to your wishes. Begin by conducting a thorough search for the original, and if it remains lost, create a new will as soon as possible. Keep all legal documents secure and ensure your executor knows how to access them. If necessary, provide copies to trusted individuals or professionals. Finally, take preventive measures in the future to avoid a similar situation, safeguarding your wishes for the benefit of your loved ones. For help in preparing an estate plan that can withstand life’s challenges, contact us today.