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What Happens When You Can’t Find the Will?

WillsThe big problem you’ll face when you can’t find your loved one’s Will is proving that it was simply misplaced.

You know that your loved one had a will but where is it? What happens in Virginia if you can't find the original document? An article from New Jersey 101.5 entitled "What steps to take when you lose a will," offers some pretty creative ideas about where you might look for the all-important original. First, be certain that a will hasn't already been probated. Contact the probate court in the county where your loved one lived at the time of their death. These records are public. Next, search their papers to see where they did their banking. See if they had a safe deposit box at the bank. Also, take a look at their checkbook or bank statements to find out whether they’d paid an estate planning attorney. Although they shouldn't, sometimes attorneys keep the original will. Reach out to relatives and close friends to see what they might know.

Here are some important facts that Virginians need to know about their state's unique will law. First, a party seeking to probate a will must probate the original will, not a photocopy. Usually, that’s not a problem but in cases where no one can locate the original will then the law allows a friend of the decedent known as ‘a proponent’ to petition the circuit court to allow a copy of the will to be admitted to probate. However, it's not as easy as you might think to gain court approval to probate a copy of a will. The proponent has to provide clear and convincing evidence that the decedent did not destroy the will with the intention of revoking it and that's why it cannot be found. So, a lost will could result in an expensive legal battle especially if anyone was disinherited in the will or simply did not receive what they believed to be their fair share.

In cases where there will be dissension within the family, a revocable living trust is likely the better estate plan.  Because a trust is a document that is immediately applicable when it is executed and assets are transferred to it (wills only become effective when you die), trusts tend to reflect your plans in real time. Nor are copies of a trust prohibited; you are encouraged to share copies with family members and especially your successor Trustee. In fact, that successor Trustee will likely be acting on your trust's instructions prior to your death. Trust remains adaptable, lending itself easily to changes in circumstances that a will simply cannot address. Unlike the will that is a public document at death, trusts remain confidential, with no requirement in Virginia to record them with the court. 

You can learn more about this topic as well as other strategies on our website under the tab entitled: estate planning in Virginia. Be sure you also sign up for our complimentary e-newsletter so that you may be informed of all the latest issues that could affect you, your loved ones and your estate planning.  However, proper estate planning is not a do-it-yourself project.  Why not call us for a complimentary consultation at 757-259-0707.   

Reference: New Jersey 101.5 (January 13, 2016) "What steps to take when you lose a will"

 

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