Q: My loved one passed away and we can’t locate the will. How do we find out if there’s an existing will? And what do we do if we can’t locate a will?
A: Generally, wills are not public record until someone dies and probate occurs. There is not a database where wills are registered, so aside from cold calling law firms to see if they drew up the person’s will, there is not a way to determine if a will exists.
We recommend that clients search thoroughly through the important papers/belongings of the deceased to see if the will can be located. In general, wills are often kept in safes, filing cabinets and sometimes safety deposit boxes. Occasionally, a lawyer that drew up the will keeps the original, but this is not ideal or common practice. Last, and in a very uncommon and outdated practice, some wills are filed at the Court in the county where the person lived for safekeeping.
If you are unable to locate a will, the estate will be probated “intestate” and assets will be distributed according to the local laws in the county of residence. A probate attorney can assist you in this process. Travis County Probate judge Guy Herman created this chart showing intestate succession in Texas. It is a good illustration of why you should have a will.
To prevent this from happening with your estate, we recommend that our clients keep their important documents in a safe place at home that can be easily accessed – and never in a safe deposit box. Communicate with your intended beneficiaries and/or executor and let them know where to find your estate plan. If possible, talk openly to your loved ones about your wishes. While these conversations can be difficult to broach, they are helpful and help eliminate expense, stress and difficulty in the long run.
