As part of the administration of a person’s estate, it must be determined whether the person died with or without a Will.  The Will, in conjunction with the probate code, dictates how the estate will be distributed. Often, determining whether a Will exists can be difficult. Some people are private about their affairs. So private that the location of important documents like a Will are hidden.  There is a balance that must be struck between safeguarding the Will to ensure that a family member does not tamper with it or protecting them from peeking at its contents and hiding it so well that no one can find it.

The Probate Pro recommends that you store a Will and other estate planning documents in the most logical, safe, and secure place.  Unfortunately, this does not always occur and sometimes we are confronted with a need to probate a lost Will.

What if I can’t find my relative’s Will?

If you have the relative’s death certificate, you can check with the county probate court that you think the decedent may have deposited the Will for safekeeping.  It is important to note that this can only be done with a death certificate.

Another logical place to search is the person’s safe deposit boxes (which can be accessed if necessary, with a court order).

It is also a good idea to contact the attorney who may have drafted the Will.  Some smart estate planning lawyers (Yes, The Probate Pro included) place a notation in the file as to where the person intends to store the original Will.

Can I check to see if someone has a Will?

Whether has been deposited with a probate court is confidential information. However, the probate court will allow access to this information upon death of the person who signed the Will and upon presentation of a death certificate.

Can you Probate a Lost Will?

MCL 700.3402(1)(c) governs the admission of a copy of a Will when an original Will is lost.  The statute statute provides that a petitioner can file an authenticated copy of the Will to the probate court:

“If the original will is not in the court’s possession or neither the original will nor an authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition must also state the will’s contents and shall indicate that the will is lost, destroyed, or otherwise unavailable.”

When the original will cannot be found upon the death of the testator, and the testator was in possession of the original, there exists a rebuttable presumption that it was destroyed with the intent to revoke it.  The presumption can be overcome with appropriate evidence of the testator’s intent.

What happens if the Will is not signed or Witnessed appropriately?

MCL 700.2503 permits probate of a document or writing that was not executed in exact compliance with Michigan law (see MCL 700.2502).  If the proponent of the Will establishes “by clear and convincing evidence” that the decedent intended it to be a will.  A formal court proceeding is necessary to obtain a judge’s order that the document or writing is a valid will. Intent that a document constitutes a testator’s will can be established by other evidence (lawyers call this extrinsic evidence) that may not be contained on the document itself.  

How do I prevent the Lost Will scenario?

The most important thing to remember when deciding where to store a Will is to safeguard it but not to hide it from everyone.  Hiding it means that no one may ever find it.  Remember to notify the at least one responsible person (usually the nominated personal representative) of the whereabouts.

We are here to help

The Probate Pro is here to help you when faced with a need to probate a lost Will.  It is critical that the attorney you hire is talented, smart, experienced and committed to your cause.

The Probate Pro Experience

The Probate Pro has a huge staff of smart lawyers and paralegals to solve difficult issues.  The Probate Pro is the largest law firm in Michigan practicing exclusively in probate related services.  Let our experience give you the edge.