What happens if an original Will is lost?
Posted on 12th February 2023
Normally the Probate Registry will not accept a copy Will with a probate application. As an Executor you can only begin the process of finalising someone’s affairs once you have received the grant of probate.
Delays in applying for probate not only hinder distributing the estate to beneficiaries, the value of the estate could also depreciate and legal disputes could arise.
What can you do?
What to do if a Will is lost
Of course, you will do everything you can to find the missing document. If you have a copy, you know it probably exists somewhere. Here are some things you can do:
Use the National Will Register – the Certainty Will Search service could help. Wills don’t have to be registered but the National Will Register holds over 9.4million registrations.
Local solicitors – a lot of people use a solicitor to prepare their Will and many practices will hold the original on their behalf. While it could be time consuming to call local solicitors, this could save a lot of time in the longer term. You can start with any practices your loved one might have mentioned, to see if they have a record of the Will.
If you have a copy of the Will, it might even have a stamp showing who drafted or witnessed it. Some detective work on the Law Society’s Find a Solicitor page might help you to track them down. If you can find the right person, even if they don’t hold an original copy, they might provide an affidavit for the Probate Registry to confirm that the copy of the Will is authentic.
Apply for a copy to be accepted – if these routes don’t unearth an original Will but there aren’t any disputes about the content of the copy an application can be made to admit it for probate.
If a Will is destroyed
A Will can be revoked by another Will, a codicil or by destroying the document. If an original Will can’t be found it could be concluded that someone destroyed it with the intention of revoking it. This would mean that the estate would be administered according to the intestacy rules because revoking a Will doesn’t mean a previous version then becomes valid.
This could happen, even if friends and family don’t believe this was someone’s intention. It can give rise to claims against the estate by someone who expected to be a beneficiary but is excluded due to the intestacy rules.
To avoid this, you would need to show that the Will wasn’t destroyed or that the person who died did not intend to revoke it. Evidence could include statements by the person who died that clearly indicated they didn’t intend to change their Will.
The best way to avoid confusion is to discuss your intentions with your family and friends and then use a professional Will writer to make sure your wishes are properly reflected in your Will. Using the National Will Registry is a good idea as well as telling your Executors where your Will is stored.
Please get in touch to find out more.
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