Estate Executors: Original Wills Required for Probate
Olivia was ill and went to the hospital one day for surgery. She told Ann to act as her executor right before she died. Now Ann was frantic trying to find Olivia’s will. Here are some of the steps Ann can take to find any missing wills. All estate executors must take these steps to find the original will.
Is a photocopy or digital copy of the original will acceptable?
Only the originally signed will is legally valid.
Perhaps a copy of the will is O.K. for the funeral home but not for all purposes. Ann needs the original will to file for probate. If Ann cannot find the will, she has certain legal options. These all start with Ann’s efforts to locate the will.
Ann must swear under oath that she cannot find Olivia’s will. Her sworn statement or affidavit is filed with the estate court.
The last will: Why must executors look for it?
Usually, a lawyer will prepare Ann’s sworn affidavit.
- She must list all her efforts to locate Olivia’s will.
- A judge will review Ann’s affidavit to decide if she needs to keep looking.
- If a judge is not satisfied, Ann will do more searching.
Searching for the will takes time and money. Ann’s lawyer will have to file additional papers with the court. Her lawyer may need to place an ad in a legal publication. This alerts other lawyers of Olivia’s passing in case a lawyer holds her original will.
All of these efforts mean more trips to the lawyer’s office and more expense. Ann will need to take more time off work. Thus, Ann must exhaust all reasonable attempts before giving up.
Ann’s lawyer must show a judge what happened to the will. Did Olivia revoke her original will by destroying it? Or did Olivia merely misplace or lose it? Legally speaking, there is a world of difference between a destroyed and a lost will.
Destroyed wills are cancelled
Did Olivia have her original will in her possession?
Sometimes, an executor can prove that a lawyer held the original will. If Olivia had it and it cannot be found, then it is presumed that someone destroyed it.
What if Ann can prove that Olivia did not intend to cancel her will? She can rebut the presumption that Olivia tore up the last will.
Ann recalls seeing Olivia talk to her doctor while she was at the hospital. Ann was in the hospital room when the doctor asked, “Olivia, do you have your affairs in order in case…?”
Olivia told her doctor, “My lawyer prepared a will years ago. It is still good.”
Executors play detective
What happens if Ann finds the original will and discovers Olivia removed her as executor at the last second?
In some jurisdictions, like Ontario, you can use a holographic document to alter a will. Holographic changes must be 100% in Olivia’s own handwriting. If Olivia wrote, dated and signed this change, it could alter her will.
You can prevent this headache. Olivia must tell Ann where she kept the original will.
Have you been asked to serve as an executor?Wills On: January 28th, 2013