We previously talked about why it's important to maintain your original Will and where you can keep it. But what happens if the Will gets lost? Or, what if you know where it is, but you don't have access to it?
The most common issue that prevents wills from being delivered to the probate court is that it gets lost. This can happen if the Will is misplaced during a move, or because it was kept in a safe place that no one knows about.
There is hope, however, if a copy of the Will can be located. A Will copy can be probated, albeit with some additional requirements.
The person presenting the Will copy for probate will have to prove to the court (1) that the Will cannot be produced, despite reasonable diligence to locate it; and (2) the contents of the original Will. This can be difficult if none of the witnesses to the original Will can be found, and there is no one who can testify that they reviewed the original Will.
If not even a copy of the Will can be located, then it effectively does not exist. The family of the decedent will have to explore options to settle the estate without a Will.
This problem can make little difference or all the difference depending the specific situation. In some cases, settling an estate without a Will results in the same distribution to the same beneficiaries, with perhaps more expense. In other cases, not being able to probate a Will could mean a beneficiary receiving no gift or a significantly reduced gift. This would happen if the Will gave the entire estate to one child, but without a Will the estate goes to all children in equal shares.
Wills in Safe Deposit Boxes
Safe deposit boxes are a great option for safekeeping of wills and other important documents. But there can be a problem with no one has access to the box after the owner's death.
Texas law allows a spouse, child, grandchild or the executor named in the Will to examine the contents of the safe deposit box while in the presence of a bank employee. If the Will is found, then the bank must send it to the court. Some banks will give the Will to the lawyer who will probate the Will. If the bank will not allow this, then your remedy is to get a court order to examine the safe deposit box. If the Will is found, it must be sent to the Court. Obviously, this is a more expensive and time-consuming process.
In order to avoid both scenarios above, consider naming someone you trust as a joint holder of the box. This person will be able to access the box immediately, without a court order or bank supervision.
Wills Held Hostage
Wills could end up in the hands of a third party if they were given to them for safekeeping or they took it. This is not necessarily a problem, unless that person refuses to turn it over.
After receiving notice of the testator's (person who made the Will) death, the person who has custody of the Will must deliver it to the clerk of the court. If they don't, then the judge may order that person to appear in court to explain why they should not deliver the will.
Ultimately, the judge has the authority to have the person arrested and put in jail until they deliver the Will. Damages may also be assessed against the person for their refusal to deliver the Will. Holding a Will hostage has some serious consequences.
If the task of settling someone's estate has fallen on you, and you are having trouble accessing or locating the original Will, schedule a consultation with us to discuss your options.