How Do I Find Out if There’s a Will during Probate?
30 January 2019
By Probate Lawyer, Sian Davies
When a person dies leaving a Will, they usually inform the people who are appointed as Executors where the original Will is stored. Unfortunately this does not always happen and in some cases family members can find themselves facing the daunting task of trying to find a family member's Will whilst grieving.
Why is the Original Will Needed?
A Will outlines what should happen to a person's assets after they die and should appoint an Executor as an appropriate person to deal with their Estate. An Executor has the legal authority and responsibility to distribute the deceased's Estate correctly. It is therefore very important that the Executor identifies whether a valid Will exists, to ensure that the Estate is distributed accurately and in accordance with the deceased's wishes.
If a Grant of Probate is needed to deal with the deceased's assets, it is the person who has been appointed as Executor who will be required to make the application for this. The original Will needs to be sent with the application for the Grant of Probate and not a photocopy.
If you cannot locate the deceased's original signed Will, you may be able to submit a copy to be proved by the Probate Registry. This process involves the Executor preparing an Affidavit detailing the circumstances relating to the loss of the original Will, the attempts that the Executor has made to locate it and details of anyone who would benefit from the Estate should the copy Will not be proved (such as a Beneficiary under the Rules of Intestacy).
If Co-op Legal Services are instructed to administer the Estate, we will draft these documents on your behalf. The Probate Registry will then consider the application and give permission for you to prove the copy Will or refuse permission. This means that it is possible to obtain the Grant of Probate without the original Will if a signed copy can be found, however it can be a much more lengthy and complex process.
Before the Grant of Probate has been issued, it is only the Executors who are entitled to see the Will and they do not have to disclose the contents of the Will if they do not wish to. However, once the Grant has been issued, the Will becomes a public document and anyone can apply to the Court to obtain a copy of the Will.
Finding the Original Will
If you have been appointed as an Executor and you are not sure where the deceased's original Will is stored, it is important to have a good look amongst the deceased's paperwork and around their house. If the Will still cannot be found, it is possible that it is stored with a Solicitor. If the Will was professionally drafted by a Solicitor, they will in most cases keep the original Will in their safe or strongroom and send the Testator (the person who made the Will) a signed copy.
The Executors are entitled to obtain the original Will from the Solicitor. With our Probate Complete Service, our Probate Solicitors can do this on your behalf, but note that most Solicitors will request forms of identification from the Executors, an original death certificate or a signed authority from the Executors before they will release the Will.
If the deceased had a mortgage, it is possible that the original Will is being stored with the title deeds in a safety deposit box at the bank where the mortgage is held. This is not as common these days, however it is worth making contact with them especially if the Will was drafted a long time ago. Again, it will need to be the Executor who requests this and a form of identification will be required before the bank releases the Will.
It is also possible to contact the London Principle Probate Registry who have a Wills storage facility to confirm if they are holding the original Will.
Finally, if the original Will still cannot be found, it is possible to carry out a Will Search online using a company like Certainty. If we are instructed to carry out Probate, we will do this on your behalf and deduct the cost from the Estate funds. The Will Search checks for Wills kept by Solicitors and Will writers across the country and also searches areas where the deceased lived.
What if I Cannot Find the Original Will?
If you have exhausted all options to locate the original or copy of the Will and neither can be found then the Estate will need to be administered in accordance with the Rules of Intestacy.