Every person should prepare a plan with regard to their estate, big or small, including drafting and getting expert advice on how to avoid probate otherwise, so that their wishes are honored by their loved ones when they pass away. However, the executor of a Will normally needs to have access to the original Will to record it (“probate the will”) and thereafter properly carry out the wishes and duties spelled out in the Will. This may present a problem during the probate process if you are unable to locate that original document.
What to do if you only have a copy of the Will
Like most states, the Commonwealth of Virginia requires a valid, original version of a Will to be filed with the decedent’s local probate court. Copies of a Will may be useful for family members to understand what their loved one wants to happen with their estate, but a photocopy typically is not admissible as valid during the probate process, and costly court pleadings and hearings may be needed if the only available document is a photocopy rather than the original.
There are some special instances when a copy of the Will may be admissible in court:
- A copy of a Will may be accepted by a Virginia court if it has been proven as valid by another jurisdiction.
- A copy of a Will may be accepted as valid if the original version was unintentionally lost or destroyed (such as by fire or flood), and all interested parties to the estate are in agreement that the copy is a true and accurate copy of the original document.
If a family wishes to submit a copy of their loved one’s Will, they must petition the court and prove that the original was not purposely destroyed or discarded by the testator to revoke it before their death. If the intent to revoke and destroy a Will can be successfully disproven, a copy of the Will may be probated and deemed as valid in Virginia.
What if I can’t find any copies?
Sometimes, a family member passes away without telling anyone where they kept their estate plans. Here’s what to do if you don’t know the location of your deceased loved one’s Will.
Check typical hiding places
The first step in attempting to locate a loved one’s missing Will is to check their home, particularly common hiding places most people tend to keep their valuables.
- A filing cabinet
- Desk drawers
- Under the mattress
- Old boxes of documents in a basement
- Crawl space or attic
Each person organizes their belongings differently, so try to step into the mind of your loved one to visualize where they’d imagine an important document as a will would be most safe. It’s also true that sometimes people place important documents in odd locations in an effort to make them harder to find, so it never hurts to check random places like hat boxes on the top shelf of a closet, the freezer or between the pages of their favorite book.
Find out if your loved one had a safety deposit box
This avenue will take a bit more “elbow grease” than checking the deceased’s personal belongings but may yield positive results. If you find a key or can otherwise confirm your loved one had a safety deposit box, you’ll want to contact the bank to find out if you can access it and check for the Will. Be aware that depending on the bank, you may need to file a court order before you’re able to access the box.
Contact the attorney who drafted the Will
During a sweep of your loved one’s house — particularly their office or most important documents — check for paperwork or information from the attorney who may have drafted the missing Will. Check for letterheads, business cards and checkbooks (going back years or even decades) that reference a law office.
If you can find their contact information, reach out to the attorney or contact other financial or legal advisors your loved one worked with to chase the paper trail and find your next clue on where the missing Will might be. The attorney can also be a helpful source of a clean photocopy of the signed Will, if no Will can be located, which then gives the family the opportunity to Petition the court to allow for the probate of the copy of the Will.
Talk to your loved one’s friends
In addition to sharing happy memories and grieving together, talking to your loved one’s friends about the missing will may afford additional answers. Start with their closest friends, as they may have been witnesses to the Will — or at least may remember the attorney’s name who created the Will.
Could the Will have been recorded in another state?
As a last-ditch effort, you may investigate if your loved one recorded their original Will after signing it. In Virginia, the Courts no longer permit pre-filing of a Will; however, if your loved one prepared their Will in another State and ultimately died in Virginia, which is then the place of probate, you might discover they recorded their original Will in the last state where they resided and prepared their Will.
Speak with an experienced estate planning attorney
If you’ve checked every nook and cranny in their house, asked every friend you can think of, can’t find a safety deposit box, and CPAs and insurance agents weren’t helpful, it’s time to hire an attorney who can help you determine how the estate will be settled and navigate the probate process for an intestate decedent.
If you or a loved one need assistance with estate planning matters, including navigating the Virginia probate process, The Law Office of Patricia E. Tichenor can help you. Contact us to schedule a complimentary consultation call today.