What do you Do if You Can’t find the Will?

What do you do if you can’t find the Will? Your loved one has passed away, you have pulled yourself through the mourning period, and now you are ready to tackle the estate. You remember that your loved one had a Will — maybe they kept mentioning it, or maybe you knew that they had signed it at their lawyer’s office at some point. You remember that they had told you they were naming you as Executor. You’ve hunted high and low and cannot find that Will. Luckily, the law provides a remedy. Each specific situation is different and this post is not intended as legal advice for any specific factual situation.

Suppose you have a photocopy of the signed Will. The County Surrogate does not admit a photocopy or scan — only an original –– to probate. However there is a procedure to file an action in the Chancery Division of Superior Court to admit a copy of a signed Will to probate. The case is initiated by the filing of a Verified (sworn) Complaint and order to Show Cause. Notice has to be given to everyone named in the alleged “lost Will,” and everyone who would inherit under the laws of intestacy if there is no Will. There needs to be clear and convincing evidence that the deceased person never revoked or destroyed the alleged Will.

If a third party is  known to be in possession of the original Will, the law allows a suit to compel production of that original Will.

Suppose you have a copy of a document that has the alleged signing date typed onto it in all relevant places, and it either has the name of the alleged signer typed in or there’s some indication such as “s/” on the signature lines, and maybe even the names and addresses of the witnesses are typed onto the document. This is sometimes called a “conformed copy of the Will.” In some cases when attorneys were holding onto the signed original, they provided this sort of “conformed copy” to the client for his/her personal records. If the lawyer no longer has that Will, then presumably that Will is lost. If the proofs are sufficient and substantial, as described above, it might be an option to file a Complaint to admit the Conformed Copy to probate, again, on  notice to all affected parties.

The best practice, of course, is to not only sign a last Will and Testament; to update it periodically as circumstances change; and to make sure the Executor knows where the Will is kept. In difficult situations, the law provides a potential remedy.

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probate problems … 732-382-6070              


Estate Administration When there is no Will

What do you do if a person passes away without a Last Will and Testament?

A Last Will and Testament designates an Executor who has legal authority to handle the estate assets. The Will also specifies who receives what, and in what way. The estate of someone who dies without a Will is called “intestacy” or “an intestate estate,” which is Latin for “without a Will.” If a person owns assets that are not jointly owned or assets that don’t have a named beneficiary, they are “in limbo” upon death and cannot be handled until the County Surrogate appoints an Administrator.

The process begins with an application to the County Surrogate where the deceased was living at time of death (this is written on the death certificate). Call the Surrogate or look on their website to find out the exact procedures. It will be necessary to submit an original death certificate and the names and addresses of the next of kin, as well as an estimate of the estate assets (if known). State law gives priority to the next of kin to be appointed as Administrator, but notice has to be given to similarly-situated kin (such as siblings of the person who is applying) so that they can renounce their right to be appointed to this job. Generally the Administrator has to obtain an insurance bond to protect the assets. If the estate is large, this can require a significant cash outlay — yet another reason to sign a Will, in which you appoint an Executor who can serve without bond. Once the Administrator is appointed, s/he has legal authority to handle he estate assets. There will still be many procedures to take care of before the estate can, finally, be given out to the heirs.

The next steps involve obtaining an EIN# from the IRS (because an estate is an independent entity); setting up an Estate checking account; collecting the bills; dealing with personal property; identifying all of the assets and determining whether any of them have a named beneficiary or co-owner; making decisions about liquidations of assets; and dealing with real estate (to name a few). There will often be a need to file the final income tax returns as well.

Many unusual issues pop up in estates, and getting early legal advice can help the Administrator avoid some of the pitfalls and quicksand that create greater problems later.

Call us for advice about estate administration ……  732-382-6070