How do I go about searching for a Will?

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When a person dies, their Will plays a vital role in determining who carries out their wishes and how their assets are to be distributed. It can also provide further details around funeral arrangements or the guardianship of minor children. Given its importance, this document should be drafted with legal advice and securely stored in a location known to the executors.

But what happens if a Will isn’t stored appropriately or cannot be found on the testator’s death?

Tracking down a lost Will can be like looking for a needle in a haystack, and not having the original for probate can have serious repercussions. So, how do you go about searching for a Will, what happens if you cannot find it, and who can you turn to for help?

Where should I look for a lost Will?

Original Wills are required when applying for a Grant of Probate, so every effort should be made to locate a Will to avoid unnecessary and potentially costly issues.

First, consider who were the deceased’s most trusted confidants? May they have had the responsibility of storing it? Where, when, or with whom can the Will most recently be traced to? Have you approached all known family or friends? Could they have it in their possession, or know who does?

You could then try contacting any law firm that acted on the behalf of the deceased, if indeed they had one (or the Solicitors Regulation Authority if they have ceased trading). It might be that they were not involved in the actual drafting of the Will, but they may have represented them on other legal matters such as property purchases. As such, they may also have been instructed to undertake additional services, such as the storage of all their other legal documents.  You could also see whether the Principal Probate Registry in London holds the Will

If the firm or person who drafted the Will is unknown, the second port of call may be the bank used by the deceased, as some hold documents for customers. If those enquiries prove fruitless but the Will was registered, then you could conduct a Will search for a fee or place a notice for all affiliated Will writers that a search is being conducted for that deceased person.

In England and Wales, only the executors of a Will are entitled to see the document until it enters the public domain through a Grant of Probate or a Court claim being issued. So, if you remain empty-handed having pursued all the avenues listed above but believe that there is an executor or law firm involved, then it’s worth placing a standing search with the Probate Registry. This will notify you if Probate has been granted within the previous six months and you will be sent a copy of the Grant and Will at that time. This is not appropriate if you are looking to challenge the validity of any Will which might exist when you should enter a caveat

Is a copy Will a valid alternative to an original Will?

In short, no, as copy Wills are often not signed or dated, and there is always the possibility that they could have been superseded or revoked. But this is case-specific. On occasion, it may be possible to submit a copy of a Will to the Probate Registry, but only in exceptional circumstances where there is substantial evidence to support the copy Will’s validity. However, it is often a costly and lengthy process, which is far more likely to be contested in Court (please read more in our article here.

Having access to a copy Will is a good starting point for finding the original though, as they often indicate who drafted the document, be that solicitor or Will writer, or it could have details of witnesses who might be able to help you in your search.

What happens when a Will cannot be found?

Unfortunately, even where there is evidence that a Will exists, but neither the original nor an appropriate copy can be found, the presumption arises that the testator decided to revoke their Will prior to their death.

In these cases, the estate will be divided under the rules of intestacy.

Intestacy means that an estate will be administered as if the Will never existed, dependent on several factors, such as whether the deceased was married or had children. In England and Wales, the law prioritises potential beneficiaries, starting primarily with immediate family, before moving on to parents, siblings, cousins, aunts or uncles, etc. If there are no surviving relatives, the entire estate will pass on to the crown (the laws of intestacy vary in both Scotland and Northern Ireland).

Intestacy won’t necessarily reflect the wishes of the deceased, because it will not include any provision for partners to whom they weren’t married, step-children, friends, charities or unrelated dependents.

So where should a Will be stored?

Most people will want to keep their Will alongside all other important documents, such as banking, pension, or insurance details. Whilst the law doesn’t dictate how this information should be kept, there are plenty of secure options available. The key thing is ensuring that your appointed executors are made aware of how to access it when necessary.

  • Keeping your Will at home

A simple, straightforward, and free solution that may give you peace of mind, especially if you have a lockable safe. However,there is always a risk that it could be stolen or damaged, or the keys/pin lost or misplaced.

  • Lodging your will with a Probate Registry

In England and Wales, the Probate Service, which deals with all probate applications, can store a Will on your behalf for a small fee. To do this, the Will can either be deposited in person at any district Probate Registry or sent by post, alongside a completed form. The Will is then stored securely at the Principal Probate Registry in London, where it can be accessed at any time, either by yourself should you wish to revoke it, or amend it, or by your personal representatives upon your death. Proof of identity will be needed, but there is no additional fee for retrieving a Will from the Probate Service.

  • Storing your will with a solicitor

If your Will was prepared by a Solicitor, they will usually offer to store the original documentation for you too (often free of charge). Some Solicitors may even be willing to store Wills that they didn’t prepare, although this is more likely to come at a cost. Because they are regulated by the Solicitors Regulation Authority, if the firm in question ceases to trade or merges with another firm, all the Wills it stores will be transferred to another regulated firm to ensure that the documents remain secure. Solicitors’ firms must hold professional indemnity insurance, meaning that if your Will is lost or damaged under the firm’s care, your estate should be compensated.

  • Keeping your Will with a professional Will writer

If you opt to have your Will prepared by a professional Will writer, they may also offer to store it for you, often for a nominal fee. However, Will writers are not subject to the same level of regulation as Solicitors’ firms, so the outcome of any issue, such as the loss or damage of a Will, or them going out of business, is not always guaranteed.

  • Registering your will

Although not compulsory, registering your Will is always advisable. Many firms will do this on your behalf as part of the cost of preparing your Will, but it is best to check, as you can always register it yourself if they do not. The National Will Register keeps records of the whereabouts of nearly seven million Wills in the UK, making it so much more straightforward for executors or loved ones to track down a copy in the event of your death.

Time is of the essence when it comes to the execution of a Will, so safe storage and good communication are crucial for saving your loved ones from any additional stress or heartache when you pass away.

But these issues do arise, unfortunately, and when they do it is always best to take expert legal advice.

The contentious probate team at Buckles can assist you in your search with the ultimate objective of administering the estate and reducing the risk of an inheritance dispute. Call us for a consultation if you need any support.