Strictly speaking the loss of a Will is not, of course, the testator’s problem. But if a Will is not stored safely and easy to locate, it can cause some quite serious difficulties or even a dispute as to whether there is a Will at all.
So it is useful to know what the consequences are of a Will going missing, or if it turns up after the estate has been distributed. And for Executors and relatives, it is also handy to know what steps to take if that proves to be the case.
What are the first steps in trying to find a lost or missing Will?
In most cases, the testator’s Will should be easy to find, and there is unlikely to be a later Will that subsequently turns up. But sometimes it isn’t quite so straightforward.
If there’s reason to believe that a valid Will exists, all reasonable efforts should be made to find it.
For example, the deceased may have previously mentioned they had written a Will but had not yet got round to storing it safely.
In that case, there are some straightforward steps for the person trying to find the Will to take:
speaking to the close relatives and associates of the deceased to ascertain whether they have any knowledge as to the whereabouts of the Will;
searching the deceased’s house and personal papers for the Will;
contacting the deceased’s solicitor, financial advisor and bank;
checking the Probate Service (which is part of HM Courts & Tribunals Service);
contacting commercial Will registration services (it is possible to do an online search with these); and
if it is thought that the deceased made a Will with a solicitor but not known where, a national notice can be placed.
What happens when the Will cannot be found?
If a Will is still not found, the deceased will be regarded as having died intestate (having not made a Will). For example, it may be thought that the deceased might have left a Will leaving everything to their children - but as the Will cannot be found, their estate would be distributed according to the intestacy rules.
The deceased’s money, property and possessions will be distributed according to the intestacy rules, which means that the law decides the beneficiaries and the shares they will receive.
What happens if only a copy can be found?
It is possible that the relatives of the deceased find a copy of the Will, or evidence to suggest there is a Will, but cannot find the original Will.
For example, a copy of the deceased’s Will might be found amongst their personal possessions, but their relatives may be unable to locate and obtain the original Will. In this situation, an application can be made to the Probate Registry for permission to apply for the grant of probate with either a copy, draft, or a reconstruction of the Will.
It would be appropriate to seek legal advice in this case, and they would need to provide:
proof of the death (e.g. death certificate); and
proof that they are an Executor named in the Will (e.g. a copy of the Will).
What can be done to make sure a Will isn’t lost?
To ensure that your Will isn’t lost, it should be safely stored. There are no specific requirements as to how a Will should be stored, but there are a few straightforward options for ensuring that it is not lost once you have created and signed it.
Best practice is to:
store your Will with a reliable organisation, such as a firm of solicitors, a bank or another business that offers a storage service for Wills, or the Probate Service; and
make sure you inform your Executors of where your Will is being kept.
Note that storing your Will with a bank may give rise to a problem if the bank will not grant your Executors access to your Will without grant of probate, which cannot be obtained without the Will.
There is no rule against storing your Will at home, but most importantly, it should be safe.