What to do if a will goes missing

After a loved one’s death, a will plays an important role in ensuring their wishes are carried out. But what happens if the will goes missing?

When a will cannot be found, it can lead to uncertainty and challenges for the family members left to handle the estate. This situation often raises questions about how probate will proceed and what steps can be taken to locate or recreate the will if possible.

In this guide, we’ll walk through the steps to take if a will goes missing and how it can affect the probate process.

Understanding the impact of a missing will

A will provides clear instructions on how an estate should be distributed and simplifies the process for loved ones.

Without it, the distribution of assets may default to intestacy laws, which follow a strict hierarchy of who inherits and often leave no flexibility for special circumstances. This lack of clarity can cause delays, family conflicts, and other probate conflicts during an already difficult time.

If a will goes missing, family members may have to provide additional evidence to show what the deceased’s intentions were. They’ll need to explore several avenues, from searching for a copy of the will to providing proof that the individual intended to keep their previous will intact.

Steps to take when a will goes missing

When dealing with a missing will, there are several steps to follow that may help locate it or establish its validity:

1. Search common storage places

People often keep their wills in secure yet accessible places, such as a safe, filing cabinet, or desk drawer. Begin by checking these common storage spots to see if the will is among the individual’s other important documents.

If the deceased took steps to store their will with a solicitor, safe deposit box, or will storage service, check with these services for any record of the will.

Some people also keep copies with trusted family members, so it may be worth asking close relatives or friends if they know of its whereabouts.

2. Contact the solicitor or will writer

If the person who passed away worked with a solicitor or professional will writer, reach out to them directly. Many solicitors store original copies of their clients’ wills or at least maintain records of where the final document is kept. If the solicitor has a copy, they can help you move forward with the probate process.

If the solicitor can’t provide an original, they may still be able to supply a draft or partial copy, which could serve as a reference if no original can be found.

3. Check with the Principal Registry of the Family Division

In the UK, some people register their wills with approved services like The National Will Register.

If you’re unable to locate the will, it’s worth contacting the registry to see if a copy was filed there. While not everyone registers their will, it can be a valuable resource in the search for a missing document.

4. Consider recent life events

Major life events can sometimes affect the status or location of a will. For instance, marriage affects your will in most cases by revoking any previously made will, unless the will was specifically written in contemplation of marriage.

Similarly, a divorce or separation may influence where someone decides to keep their will or if they make updates.

If the deceased recently experienced significant changes, there’s a chance they created a new will or moved the original document. Speak to close friends or family members who may know if the person intended to update their estate plan.

What if you can’t find the original will?

If an exhaustive search fails to produce the original will, a copy may still be usable in some cases, but this depends on specific circumstances and legal considerations.

Here’s what to know if you have a copy but not the original:

Using a copy of the will

If you have a photocopy or draft of the missing will, it may be possible to submit the copy to the probate court. However, courts generally require the original document, so additional evidence will be needed to demonstrate that the copy accurately reflects the deceased’s intentions.

To use a copy, you may need to show:

• Evidence that the original existed: This might include testimonies from the solicitor who drafted the will, or other people who were aware of its contents.
• Proof that the will was not intentionally revoked: If there’s reason to believe the original will was destroyed by the deceased, the court may assume it was intentionally revoked. However, if family members or close friends can testify that they never expressed the desire to change it, this could support the case for accepting a copy.

In these situations, consulting a solicitor can be invaluable to guide you through the legal requirements for proving a copy of a missing will.

Proceeding with intestacy

If the court does not accept a copy or if no will can be found, the estate will be distributed according to the rules of intestacy, which a strict hierarchy, prioritising spouses and children. This process can bypass intended beneficiaries, such as friends or charities, whom the deceased may have wished to include.

It’s important to understand that if intestacy applies, some assets may not go to the people the deceased would have chosen, leading to potential probate conflicts among surviving relatives. This can be particularly challenging in blended families or situations where the deceased had specific wishes for asset distribution.

Preventing issues with missing wills

To avoid the challenges of a missing will, there are several proactive steps that individuals can take while they’re alive to ensure their estate is managed according to their wishes.

These steps are also helpful for family members looking to prevent potential problems in the future.

1. Storing your will in a safe place

The most effective way to avoid a missing will is to store your will in a secure but accessible location. Many people choose to keep their will with a solicitor, in a safe deposit box, or with a will storage service. Ensuring that a trusted person, like your executor, knows where to find the will is equally important.

2. Updating your will regularly

Significant life events, such as marriage, divorce, and the acquisition of foreign assets in your will, may require adjustments to your estate plan. Keeping your will up to date and informing loved ones of any changes helps avoid confusion and reduces the risk of it becoming outdated or irrelevant.

Regularly updating your will also allows you to address any new assets, beneficiaries, or personal wishes that may not have been part of your previous estate plan.

3. Informing your executor and close family members

Letting trusted individuals know about the location of your will, as well as the main contents, can prevent unnecessary stress and disputes. Although you’re not required to share the details of your will, simply letting people know where it’s stored helps avoid confusion.

Navigating probate with a missing will

When a will goes missing, the probate process becomes more complex, as the court may require additional documentation and testimony to support any claims about the deceased’s intentions.

If a copy of the will is available, probate will focus on verifying its legitimacy. In situations where there’s no will, the court will handle the estate based on intestacy rules.

For families facing probate with a missing will, it’s often helpful to work with a solicitor who can provide guidance on the steps to take. They can offer support in gathering the necessary documents, identifying witnesses, and navigating court requirements, which can help ease the process for everyone involved.

Final thoughts

Losing a will can be a challenging and emotional experience, but understanding the steps to take if a will goes missing can make the process more manageable. Start by searching common storage locations, contacting professionals who may have a record of the document, and exploring alternative options like will registries. If the original cannot be found, a copy may still be usable, provided you can supply additional evidence of the deceased’s intentions.

To prevent a will from going missing in the future, proper storage, regular updates, and open communication with trusted family members are key. Being proactive with estate planning is the best way to ensure your wishes are respected and that your loved ones can navigate the probate process with confidence.