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WHAT HAPPENS IF YOU CAN’T FIND THE WILL?

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To probate an estate in North Carolina, the Clerk of Court requires that the original copy of the will be filed. But important documents get lost all of the time. Wills can easily be lost in a move, destroyed in a casualty event (e.g. flood, fire, hurricane), or simply misplaced. So, what happens if your loved one dies, and you can’t find the will?

 

Safe Keeping 

It is first worth mentioning some suggestions to prevent loss or destruction of the original copy of the will. Many individuals like to keep their will in their home along with their other important documents. Sometimes it’s a safe, sometimes it’s a desk drawer, and sometimes it’s a shoebox under the bed. If you’re going to keep it in your home, you should have some safeguards. It should be in a place that is protected from theft, fire, and water damage. Thus, it may be worthwhile to invest in a fireproof safe. If you go the safe route, you should probably share the combination/key or its location to whomever you’ve named executor. I’d imagine it would be rather inconvenient to go all “Ocean’s Eleven” on a safe just to retrieve a will.

By the way, some people want the lawyer who drafted the will to keep the original copy in their office. This is not advisable. Law offices are subject to the same calamities as your own home. They also sometimes move locations and lose things.

Your best bet is probably a safety deposit box. These are kept in an area that is generally protected from all sorts of casualty events. Furthermore, it provides (literally) bank level security, mitigating the threat of theft. Also, you get to walk into the vault, which is pretty cool.

 

Only a Copy

Okay, so your loved one didn’t have the chance to read this article and their will was somehow misplaced, what now? Even though you only have a copy, the will can still be probated. However, it is a much more arduous process. Specifically, you must show the clerk sufficient evidence to demonstrate 4 things.

 

  1. The original will was properly executed.
  2. What the original will said.
  3. That the will in question was never revoked.
  4. That there was a diligent search for the original will—in the places it would most likely be found—and it was not found.

 

A copy of the will is going to help significantly in proving these four elements. Although, the clerk will most likely require witness testimony. Witnesses can be anyone who has knowledge of the contents of the will, either because they read it or it was read to them. Probably the best witnesses, however, are the witnesses that attested to the signing of the will or the attorney who drafted the will. 

 

No Copy, No Nothin’

If you don’t have so much as a copy of the will, or if the clerk refuses to accept the copy you have, there is still hope. The decedent’s estate can still be opened and probated. However, the distribution of assets won’t follow the terms of the will. The assets will pass through intestate succession. Typically, if you are an heir close to the decedent (e.g. wife, child) this method of distribution is not ideal, but it is still beneficial. If you are the only heir, it will be the same as if everything was left to you through the will.

 

What Should You Do?

If you’re having trouble finding the original or a copy of your loved one’s will, you should first look where they keep all of their important documents (read: that old hat box in their closet). Next, you should determine if they own a safety deposit box. If all else fails, seek the assistance of an attorney to determine how to further proceed. 

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

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