How Does Probate Work if You Can’t Find the Will?
22 July 2019
When someone dies, their affairs needs to be wound up, their debts settled and the rest of their Estate distributed to those entitled to inherit it. This is called Probate, and the process for this will differ depending on whether or not there's a Will, and if there is, what it says.
But what do you do if you're certain there is a Will but you just can't find it? Firstly, there are a number of searches that can be carried out to locate the Will. If this still can't be found then the Estate will need to be administered as though the deceased died without a Will in place.
How to Find a Will during Probate
Naturally, your first course of action when looking for the Will should be to conduct a thorough search of the deceased's property, paying particular attention to any paperwork that you find.
Even if you don't come across the Will itself, you may find reference to the Will or details of the Solicitor or Will Writing provider who drafted it. Often, professional Will Writing services will include secure storage of the original Will. If you are able to identify the firm that holds the Will, then you can get in contact with them to request that this is released to you.
In some cases, the firm of Solicitors who drafted the Will may have closed down or been taken over. If this has happened, then even though you know who drafted the Will, it could still be difficult or even impossible to locate the original. If you know that the Will was drafted by a firm who was regulated by the Solicitors Regulation Authority (SRA) before they closed down, then you can contact the SRA's Intervention Archives department, who may be able to locate the Will for you.
Although there is no central register of Wills in England and Wales, there are other places you can look if you can't find any information in the deceased's property. One of these options is to contact the Probate Service at the Principal Probate Registry in London, which is a central government Will storage service.
Another option is to contact Certainty - the National Will Register. Certainty can carry out a Will search for Wills that have been registered with them and those that have not. Certainty charge a fee for this service.
What Happens if the Will Can't Be Found?
If the original Will can't be found, but you do manage to find a copy of the signed WIll, you might be able to submit this to the Probate Registry. The Probate Registry will decide whether to prove the copy (meaning they can use it to issue the Grant of Probate) or to refuse this.
It's best to seek independent legal advice if you are submitting a copy of the Will to the Probate Registry, as you will need to provide supporting documentation for this.
If neither the original Will nor a copy of the signed Will can be located, then you will have no choice but to administer the Estate as though the deceased died without leaving a Will. This is called dying intestate, and in these circumstances inheritance laws determine how the Estate should be distributed and who is responsible for carrying out this work.
These inheritance laws are called the Rules of Intestacy, and they place the relatives of the deceased in a strict order of priority. The person at the top of this list is the deceased's spouse or civil partner, followed by their children, and so on.
The Rules of Intestacy are strict and do not always recognise all family members. For example, unmarried partners and step-children are not recognised under the Rules of Intestacy. Certain individuals are entitled to make a claim against the Estate though, if they feel that they have been inadequately provided for. For more information on this, see Who Is Entitled to Make a Claim on an Estate during Probate?