When someone creates a will, there are many different ways to store it. Some people choose to keep their will at home in a special file box, fireproof safe, or drawer. If an attorney drafts the will, clients usually have the option to leave it with the attorney. Law firms use a variety of document storage systems to safeguard original wills. Lastly, there’s the option of filing a will with the local court responsible for handling estates. Some states call it a probate court, while others refer to it as an orphan’s court, district court, or surrogate court. Whatever the name, it may be the last resort when looking for a loved one’s will. But what happens if a will is not filed? Are there any other places to search?
What Happens If a Will Is Not Filed?
Before going any further, it’s important to note the distinction between filing a will with a Will Registry and filing a will for probate. When someone files their own will, they’re handing it over to the court, or the county’s “Probate of Wills”, to keep safe and on file. The document remains private until the testator (the person who created the will) passes away. Once the county is notified that the owner of the will has passed, and then the Probate Court makes the will public record. You may be able to find such a will through the Probate Court in the county where the person lived.
A probated will, on the other hand, is a will offered to the court through a petition—usually by the will’s executor—to prove its validity. This is the first step in administering and distributing an estate with a will.
The Person Who Has the Will May Be Liable
Many states require a person in possession or custody of a decedent’s will to file it with the appropriate probate court. Failure to do this within a reasonable time (or the deadline set by state law) can result in civil and criminal charges. In other words, if a decedent’s will is not filed with the probate court by the person who possesses it, he or she may be liable to anyone who has an interest in the estate. Not all states have this requirement, so it’s important to know the laws of the state where the decedent died.
Use an Online Registry to Search for a Will
When searching for a will, it’s imperative to exhaust all options. The U.S. Will Registry is an online registry of wills that allows you to search its database. The U.S. Will Registry was established in 1997. Registered wills date back to 1967. Millions of wills are registered nationally and globally. An online search is simple and can provide great relief for your family.
If a loved one registered their will or their attorney registered it for them, the search results will provide the following information:
- Where the will is located;
- Who has possession of the will; and
- Which designated family member/s can access the registry.
In the event the will you are searching for is not located in the database, your information will be added to a missing will database. This database is accessible to attorneys who can contact you if they have the decedent’s will.
Dying Intestate Succession
When a person dies without having a valid will in place, their property passes by what is called “intestate succession”, according to state law. Simply put, if you don’t have a will, the state will make one for you. All fifty states have intestate laws (or “statutes”) in place.
The purpose of intestate succession laws is to distribute the deceased wealth in a manner that closely represents how the typical person would have created their estate plan, if they had a will. Unfortunately this plan could have dramatically differed from what the person really would have wanted. Even if family members are firm that the state’s intestate protocol would not have been what their loved one wanted, there no exceptions made when no valid will exists.