Where’s The Will? What Do We Do Now?

Good citizen and FOS client that you are, you’ve dutifully created your estate plan, leaving the original plan documents with your FOS attorney for safekeeping, and advising your family of their location.

Gold medal for you. But what about those who shove their original documents in a drawer, or under their bed, without telling anyone where to find them when the time comes?

Track and field Olympian Florence Griffith Joyner had a will, but didn’t tell anyone where it was before she died.

This led to a court battle between Joyner’s husband and mother for control of the estate. The court eventually prohibited both from administering Joyner’s assets.*

In the whirlwind of family notifications, and funeral preparations, the last thing a grieving family member wants to think about is finding an original will or trust.

But what if the original can’t be found?

Wisconsin law allows the court to “take proof” of the existence, validity and contents of a will which is lost, destroyed by accident or without the testator’s consent, or otherwise missing.

Absent the originals, however, there are no guarantees, especially if you can’t even lay your hands on a copy. The court is not required to find either that a will is missing or that it has any specific provisions.

The best way to prove a missing will is through a fully signed copy. If you only have an unsigned copy, evidence of its execution from its witnesses and notary will be crucial.

The situation is much trickier when no will can be found at all.

The court has to determine both whether a will was properly executed and, if so, what that will provided.

The practical burden here is higher, because the evidence, if any, will likely be limited and circumstantial.

Hopefully, for example, the drafting lawyer has correspondence regarding, or even versions of, the will in his or her computer system.

Or an uninterested person remembers talking with the deceased about the execution and content of his will.

Or documents were created or acts taken consistent with an executed will.

If all of this weren’t enough, proof will also be required that the supposed will is the latest one, which was not later amended or revoked.

Two simple acts can prevent the mess that comes from a missing will.

First, don’t let the will go missing. Have a trusted person keep your original estate planning documents for safekeeping.

Second, while you are very much alive, periodically advise your family where the documents are located.

And remind them to create estate plans of their own.