While far too many Americans — a staggering 67% — die without an estate plan, 33% of them take the time to create one, which means that when they die, it is important for their loved ones and the executor of their estate (if they nominated one through their will) to locate their will promptly, so their efforts to create a will don’t go in vain.
What if the decedent didn’t mention the location of their will to anyone? What if the estate planning attorney who was holding onto their will for safekeeping is also deceased or did not retain a copy? What if you know that the decedent executed a will but you can’t find it?
When certain challenging conditions exist, determining how to locate a deceased person’s will can be quite the feat. Luckily, as an experienced probate firm, we have the skills and knowledge to help you conquer any obstacles you come across when trying to locate the will. Not only that, we can serve as an invaluable resource during the probate process, regardless of your connection to the estate (i.e., executor, beneficiary, heir, surviving spouse, etc.).
What Is a Last Will and Testament?
A last will and testament (commonly referred to as a will) is an estate planning tool used by many to communicate their final intentions regarding their assets. Most wills name specific people to inherit specific assets or percentages of assets. When wills are not specific or are problematic for some other reason, disputes over the will can arise.
Will disputes can include:
- Disputes over ambiguous language
- Will contests
- Improper revocation of a will
If you have a potential will dispute on your hands, it is best to consult with a probate attorney to come up with the best course of action.
Do Most People Have a Will?
The assets that a decedent owns upon their death constitute what is known as their estate. If they had created a will, its job is to rule over the estate, providing instructions for who is to inherit what.
No one is legally required to create a will, which means that if someone dies without having other estate planning documents in place, their assets ultimately will go to their closest living heirs in accordance with California intestate succession laws.
No one is legally required to designate their will as their primary estate planning document, either. In fact, a trend in the world of estate planning over the last 50 years has been the rise of non-probate asset transfers. Probate refers to the process a will must pass through in order to be authenticated by the court. People seek to avoid it through non-probate asset transfers since these can save time, money, and even headaches.
Examples of non-probate asset transfers include:
- Trust distributions
- Assets owned in joint tenancy (deceased tenant’s share of the asset passes to surviving joint tenant(s))
- Assets owned as community property with rights of survivorship
- Life insurance policies
Even though many people would like to avoid probate, it is unavoidable in some situations. For example, if a decedent’s estate has substantial assets with a cumulative value that exceeds the small estate exemption (which is $184,500 for decedents who died after April 1, 2022), but the decedent had not executed estate planning documents prior to their death, it will be necessary for their estate to pass through probate, just as it would if there had been a will in the picture. Ultimately, it’s the ways titles to property are held that determine whether or not probate can be bypassed.
Are Wills Public Record?
Probate attorneys are accustomed to receiving inquiries about how to find a will in public records. In order to understand the answer to this question, you must first understand how the probate process works.
When a person dies, chances are that their estate will need to pass through a formal probate — which is a process for proving the authenticity of a decedent’s will and appointing an executor, among other things. Even estates that do not have a will providing instructions for how its assets should be distributed generally pass through probate; this is because estate assets still must be valued and accounted for before being distributed to the decedent’s heirs or beneficiaries in accordance with the laws of intestacy.
To launch the probate process, the person who is in possession of the will (usually the executor) should file it with the superior court in the county where the decedent had lived within 30 days of their death. They must also file a petition to open probate with the court, which will lead the court to set a date for the initial probate hearing (this usually happens within 45 days of the petition being filed). If there is no will to be found, a petition for letters of administration should be filed to trigger the process of intestate succession and have an administrator of the estate appointed by the court.
If a will does exist, once it is lodged with the court, it is public record and can be accessed by anyone, whether or not they have any relation to the decedent or their estate. Many people opt for a trust instead of a will since trusts are not required to be filed with the court or subject to probate. Some people even execute a will and trust to ensure no stone is left unturned when it comes to the passing down of their assets. If this is the case, it generally will still be necessary for their will to pass through probate, but their trust can remain private, with the trustee initiating the process of trust administration independently.
If you continue to have questions about how to find a will in public records or about how to locate a will of a deceased person, then keep reading, as the next section covers this topic in detail.
How to Find Out if a Will Exists: Your Options
It is natural to panic if a loved one dies without telling anyone where their last will and testament is hidden, particularly if you believe they left you an inheritance or know that they named you as the executor of their will. But there is no need to fret, as probate attorneys generally have a few tricks up their sleeves to track down the document (that is, if it exists).
That being said, if you’re wondering how to find a copy of a will in California without an attorney’s help, there are ways of locating a will that you may wish to try, including:
- Search every nook and cranny of the decedent’s home: To prevent tampering and mishaps, most people choose to keep their wills in a clandestine location. As a result, you should not leave any area of their home untouched when searching for their will. Look in places that are hidden from plain sight, such as locked desk drawers and safes.
- Check the safety deposit box at the decedent’s bank: For safekeeping, many people will leave their wills in one of their bank’s safety deposit boxes. These may be a challenge to get access to unless you previously had been granted access by the decedent or are listed as a joint owner on the account. Otherwise, our probate attorneys can obtain a court order from the probate court giving you access to the safe deposit box to search for the will.
- Ask their family and friends: When a will can’t be found, the decedent’s closest acquaintances can be a great resource. While they may not know the exact location of the will, they may be able to provide clues based on their conversations with the decedent.
- Speak with their attorney(s): It used to be that if a person had a will, their estate planning attorney would know its location or be holding onto it themselves. However, with the rise in popularity of people using estate planning software to draft and execute their wills, this no longer is always the case. Still, there is no harm in speaking with their estate planning attorney — or for that matter, any attorneys the decedent may have worked with — to try and find information about whether they died with a will.
If you still can’t locate the decedent’s will after trying all of the options listed above, it may be time to enlist the help of a probate attorney to see if they can find the document. There is, of course, no guarantee that an attorney will be able to find it, as the decedent may not have created a will or their will may be incomplete (e.g., it is unsigned). They also previously could have revoked their will, which would automatically render their will invalid, even if it is able to be found.
How to Find a Will in Public Records
Perhaps you are an estate beneficiary dealing with an uncooperative executor who refuses to provide you with a copy of your loved one’s will, or you are an heir who wishes to view their will to confirm that no grounds for contesting the will exist. If the petition for probate has been filed and the will has been lodged with the court, you should have no problem obtaining copies of the will (though you may have to pay a small fee for them).
Generally, you will need to make a trip to the Office of the County Clerk in order to secure copies of the will. If you are not sure whether the office is in possession of the will and want to know how to find out if a will was filed, you can ask an employee in that office to search their records for it. If the office does not have the will, it does not mean one doesn’t exist; it just may not have been found yet.
How to Find a Will of a Deceased Person Online
As touched on earlier in this article, it may not be possible to locate a will online. For a will to be available online, it not only would have to be lodged with the Office of the County Clerk (which is a task that’s usually completed by the executor), but the county would need to have an online database of court documents already set up. While many counties do make it possible to locate a deceased person’s will online, this approach should not be relied upon to find if a will exists, as the will may not have been lodged with the court yet when you conduct your search.
To discover whether your county makes last wills and testaments available online, visit the official site of your county courthouse. There will typically be a page for searching court documents where you can plug in the decedent’s name and any other information that can aid in the search. If your search turns up nothing, you may want to call the Office of the County Clerk or visit it in person. If you live out of state or do not have the ability to visit the office in person, the county clerk might be able to mail you copies of the documents you are looking for given that they exist.
FAQs About How to Locate a Will
If you are the loved one of a decedent or the executor of their estate, it’s likely important to you that the decedent’s final wishes, as they are described in the terms of their last will and testament, are honored. In order to ensure this happens, their will must be located promptly following their death. We answer the most frequently asked questions surrounding how to locate a will of a deceased person below.
I have a tight budget. Can you share how to find out if a will exists for free?
It is not necessary to hire a lawyer to find out if a will exists, although if one is hired, they can certainly speed up the process.
In many instances, you will automatically find out about the existence of a will by being a beneficiary of the estate or an heir, since whoever opens probate (usually the executor) is required to mail notice to all parties with an interest in the estate. If they fail to do this or if you are not an interested party, you can find out if a will exists by reaching out to the Office of the County Clerk directly.
Of course, if your efforts to track down the will don’t pan out as expected, our skilled team of probate attorneys are always available to help.
Can you offer any guidance on how to locate the lawyer that wrote the will?
Unfortunately, there aren’t any online databases where you can find information about the estate planning attorney who drafted a decedent’s will. Of course, if you have an idea of their name or the name of the firm where they work, you can plug this information into a search engine to come up with some potential candidates; however, if you have no information about them, you may have to resort to creative tactics to get it.
For example, a decedent’s bank transactions can be inspected for payments made to law firms. Their files and documents also can be searched. If your search turns up no results, a probate attorney may be able to offer further assistance.
Do you have advice on how to find out if you’re in a will?
It’s quite simple, actually. If you have been named as an estate beneficiary, you should have received notification via the mail from the executor about the opening of probate . If the will names you as a beneficiary, the court will not allow a petition for probate to be granted until you are notified.
What if the executor is refusing to provide me with a copy of the will?
If an executor is not providing you with a copy of the will, you can try to obtain copies of the will from the Office of the County Clerk, as previously mentioned. If the executor has not lodged the will with the court, despite the deadline for doing so having elapsed, then it may be necessary to get in touch with a probate attorney, who can exert pressure on the executor to follow through with their duties, one of which is lodging the will.
Without seeing the will, beneficiaries cannot enforce their rights — and an executor’s primary job is to look out for the best interests of the beneficiaries. If the executor’s behavior is crossing over into negligence or misconduct that is causing harm to the estate or infringing on the rights of beneficiaries, then it may be time to speak with a probate attorney about bringing a fiduciary misconduct claim against them to have them suspended, removed and/or surcharged.
Uncooperative executors are no walk in the park, so if you are dealing with one, the best thing to do is have a lawyer in your corner enforcing your rights during every step of the administration process.
When locating a will of a deceased relative, how closely do I have to be related to them to secure a copy?
You do not have to be related to the decedent in order to secure copies of their will. In fact, it is not even a requirement that you personally know them. If the will has been lodged with the court, it can be accessed by reaching out to the Office of the County Clerk. As previously mentioned, wills are public record.
Still have questions about how to locate a will after death? Our skilled team of lawyers can help.
Trying to locate a will while grieving a loss can be a difficult task to undertake on your own. Luckily, if there is a will and it has been lodged with the court, our attorneys will be able to locate it in no time. They also can assist in instances where a will cannot be found. Regardless of your issues with a decedent’s will, our attorneys are available to help. Request your free consultation today to learn more.
