When you pass away, it’s a difficult time for your loved ones. You don’t want to make things any harder by failing to leave behind an up-to-date will.
More importantly, you need to ensure that your friends, family, and executor know how and where to access a copy of that will if anything happens to you. Read on to find out which types of documents attorneys keep, how to find a loved one’s will, and what to do if you can’t locate someone’s original will.
Key Takeaways
Most lawyers retain copies of a client’s will, but they often return the original to their client.
Law firms will generally retain copies of a will indefinitely unless an alternative arrangement has been made.
It’s not a lawyer's responsibility to find out when a client dies — particularly if they have not been commissioned to settle the estate.
Why Lawyers Don’t Keep the Original Will
Generally speaking, lawyers do not typically retain the original will of their clients.
Travis Christiansen, attorney at Boyack Christiansen Legal Solutions in St. George, Utah, explains:
“Most of the time, attorneys do not keep a copy of the original will. If they do, they usually only do so for a set period of time — like seven years — as it can become cumbersome and expensive to store all the wills of all the clients you’ve done work for if you keep them forever.”
Instead, lawyers typically retain a copy of client wills as part of each client’s wider estate plan. This practice makes it easier for surviving family members to access a decedent’s will if the original can’t be found.
Where to Locate the Will of a Loved One
“If the attorney who prepared it doesn’t keep a copy, and the state doesn’t allow for will filing (which most don’t due to space issues), you’ll need to know where your loved one put their will in order to find it,” says attorney Christiansen.
He adds:
“Sometimes, if you can contact the attorney who prepared it, they'll have a copy that can be used to execute the wishes of the deceased.”
Your loved one may have already notified you if you're a designated party in their will.
As a trustee or executor, you may have obtained a copy of the will or been informed of its whereabouts.
Most individuals maintain a will in a secure location, such as the following:
Deposit boxes at a bank.
An at-home safe.
With the assistance of an estate lawyer.
Alternatively, it’s worth speaking to your loved ones now to ask if they’re using an online storage solution like Trustworthy.
Trustworthy is a secure Family Operating System® that enables individuals to create and store digital copies of their important family documents, including estate planning essentials like a will.
From there, users can collaborate and share controlled access to particular documents. That makes it simple to create a digital copy of your will and share it with your attorney, executor, family, and friends ahead of time to ensure everybody is on the same page and knows how to access the will when you’re gone.
If you need to locate a will, contact your state's register of wills or probate tribunal to verify that the will has been documented.
In Maryland, for instance, for a one-time charge, a person may submit a will to the court. It is then sealed and held until it is returned to the individual who submitted it or their agents after their passing.
Following the death of a loved one, their will is normally submitted to their state's probate court.
Wills Filed to the Probate Court Are Part of the Public Record
Although you may not be able to look at the complete will, you may request to examine whatever papers have been submitted to the probate court.
Related: Is a Video Will Valid?
Who Receives Copies of a Will
The state determines how wills are administered and processed based on where the dead individual resided.
In most circumstances, wills are probated after an individual's passing.
If the individual registered their will, their state would certainly inform their heirs and any executor appointed.
If no executor is designated, the state can choose one, or the heir may be held accountable.
Executors are typically the individuals who receive a duplicate of the will. Most executors will be those who are directly touched by its conditions.
This might include:
The executor of the estate.
Trustees.
Previous beneficiaries or heirs.
Individuals with medical POA.
A bookkeeper.
Tax authorities at the state and federal levels.
How long does the legal firm have to keep the original will? Firms that opt to hold and store the original will of a client will generally do so indefinitely unless the firm and the customer have another agreement.
Lawyers must keep these documents safe, even if they have lost track of the customers.
That being said, it’s important to remember that most law firms prefer to retain only copies of a will instead of providing the original back to their client for storage elsewhere.
It’s Not a Lawyer's Responsibility to Find Out When a Client Dies
It is not a lawyer’s responsibility to find out when a client dies.
In smaller locations where the lawyer is more likely to learn of a client's death, the lawyer will inform the family that they have the original paperwork (or at least they have copies).
If a lawyer learns of a client's death but is not hired to help with probate administration, the will must be filed with the relevant probate court within 30 days of the client's death.
However, in the absence of information about the death, they are not responsible for investigating death records for all of their customers to determine whether they have died.
Increasingly, attorneys are declining to provide this service. It turns out to be more bother than it is worth.
Lawyers and legal firms are increasingly deciding that they do not want to take on the obligation and cost of maintaining original papers for their clients, particularly if they are becoming paperless in all other respects.
The Status of an Original Will After a Lawyer Retires
Mark Hirsch, personal injury lawyer at Templer & Hirsch Injury Lawyers in Aventura, Florida, explains:
“Most of the time, lawyers don't keep the original will. They hold a copy instead and return the original to the client to keep it safe.”
That being said, an attorney may hold on to an original will by special arrangement, and they will generally have a copy of your loved one’s will on file.
If the lawyer is part of a larger practice, the firm will keep the relevant copies after your loved one’s lawyer has retired.
However, solo practitioners might relocate their will files to their garages, continuing to produce originals when required for as long as they can.
In some circumstances, the retired attorney dies, and their spouse or children throw away the papers if they cannot find another firm to take them on.
“Contacting the local lawyer association is a good idea if you don't know where the will is,” says Hirsch.
To reduce the number of paper files in law offices, many lawyers now only keep original wills and durable powers of attorney for clients.
Copies of other original papers, such as trusts and health care proxies, often function as originals, so retaining them for protection is less important.
In reality, wills are becoming less necessary as individuals bypass probate via trusts, beneficiary designations, and joint ownership.
Related: Do Wills Expire? 6 Things To Know
What to Do When a Dead Person's Original Will Cannot Be Found
If a will is lacking because the deceased person revoked it on purpose, a previous will or intestate succession rules will decide who inherits the deceased person's estate.
“If the original will cannot be found, a court may think it was intentionally destroyed. A copy might be okay if its accuracy can be shown,” says attorney Mark Hirsch.
Acceptable copies might include the lawyer's computer file or draft. Nonetheless, the court will demand proof that the departed signed the authentic copy correctly.
Check desk drawers, file cabinets, the boxes in the back of the attic, floor or wall safes, glove compartments, garages, automobile trunks, and even inside pages of a magazine and beneath mattresses!
Second, determine if the departed had a safe deposit box.
Keys to a safe deposit box are often huge, made of silver or aluminum, and marked "do not duplicate."
When you come across such a key, contact every bank where the departed had a savings or checking account to identify the location of the safe deposit box.
Know that the bank may need a court order before granting you the contents in the box.
Investigate: See if you can find the attorney who created the will's letterhead or business contact info.
Review all checkbooks for checks to legal firms. You may have to scour many years of records since individuals seldom modify their estates.
If you are unable to locate information on a lawyer, get in touch with any other counsel that the individual hired, such as a CPA, financial planner, or insurance agent. They may have known the deceased's attorney.
Fifth, speak with the deceased's friends. They are often witnesses to wills or may have been informed of where the document was stored or who created it.
Lastly, contact the court in the county where the dead resided in the state. If the will were filed, it would be accessible for public inspection.
If you are still unable to locate the will, you should consult with an attorney to decide how the estate will be resolved without a will.
According to Christiansen of Boyack Christiansen Legal Solutions, some lawyers do collect and maintain other forms of evidence to establish what an individual wanted to happen after they died. He explains:
“For example, some attorneys make a video of the person reading the will so that there are two records. Sometimes, the person told their family what they wanted to have happen or wrote a letter, and those may be used as evidence to carry out the last wishes of the deceased.
“However, if there is no additional evidence to support claims of what the decedent wanted the estate may be treated as if the person died intestate, meaning without a will, and everything will be distributed under the law of that type of estate. This is why it is common for attorneys to keep an electronic copy of the will.”
With the difficulty of locating a misplaced will, you should notify the deceased's lawyer, as well as their appointed trustee, executor, and other trustworthy persons, of the whereabouts of any original estate planning papers.
If you store your original will in a bank deposit box, ensure the box is owned by your living trust (so your successor can access the box after your death without a court order).
Suppose you store your original will in a safe in your home. Make sure your family knows where to obtain the key or the combination if you die and the box is shut.
It would help if you informed people of the whereabouts of your will. Otherwise, your efforts in creating the will might be in vain. An original will that can't be discovered is the same as having no will.
Some Recommendations Regarding Original Documents
“Keep your will in a safe place, like a metal safe or safety deposit box, to always be available and secure,” says Hirsch, the lawyer from Templer & Hirsch.
“Tell your caretaker and family members you trust where it is.”
You need immediate access to original records, particularly in medical emergencies.
For instance, suppose you are the agent designated in someone's power of attorney or advance directive. You must use the power conferred in the agreement to make quick and important medical choices one weekend.
Having the originals in a convenient location might minimize a delay in getting someone the treatment they need.
Again, this is where a solution like Trustworthy can offer a major lifeline.
Trustworthy enables individuals, their agents, and loved ones to share estate plans and collaborate using one secure, single point of truth. This ensures all relevant parties have access to your original will, and that it’s fully protected at all times.
Trustworthy’s range of security features includes robust password recipes, two-factor authentication (including hardware keys), and AES 256-bit encryption to make sure nobody can access your important documents without being granted access.
Frequently Asked Questions
Do you keep a copy of your will?
Most attorneys will return an original will to the client. That means it’s your responsibility to securely store your will.
Who has the right to see a copy of a will?
After probate has been closed, your will goes on the public record. That means it can be accessed by any member of the public.
Are photocopies of wills legal?
Some probate courts will recognize a copy of an original will under certain circumstances — but it’s generally preferable to supply the original will.
Trustworthy is an online service providing legal forms and information. We are not a law firm and do not provide legal advice.
