Ideally, the decedent will have shown a copy of the Will to the person they nominated as executor and told them where the original is kept. If not, a thorough search of their papers should take place. If you do not know if there is a Will and plan to do such a search but anticipate the possibility of conflict, it may be useful to bring an independent witness while you search. You should look in any file cabinets, in document boxes and notebooks on bookshelves, and in any lock boxes or safes that you can open. Sometimes people put their wills in zip lock bags in the freezer or hide them in book safes (which look like books but have an empty core for hiding documents).
If you find the Will and are not named as the nominated executor, you must give the original to the named Executor within 30 days of death. The executor must also file it with the court within 40 days, whether or not they intend to serve as executor. (An executor named in the Will is likely to have been selected for their organizational skill and perceived ability to best help the family through the process, however, a nominated executor can always decline such a nomination.)
If there is a Will and the executor knows they do not want to serve, they should file it as a “Will Only” filing as soon as possible.
If the executor is willing to serve, the Will most typically is filed with the opening of a probate. In order to meet the 40 day deadline, it is helpful for the executor to set up an appointment with an attorney as soon as the death certificate is available to have the attorney review the Will to identify any potential issues within and gather the information needed to draft the other pleadings needed to open the probate. Many attorneys will provide a free half hour consultation and that can be a good time to evaluate whether the attorney is a good fit for you and someone you feel comfortable working with.
If you only have a copy of the Will but believe the original is merely lost and not intentionally revoked, an attorney can help you determine if that copy can be used by the court in the place of the original. Similarly, if you believe there is a Will but it is inaccessible in a safe or safety deposit box, an attorney can help you get a court order to get access to those to search.
It is uncommon but not unheard of for attorneys to keep originals of their clients’ Wills. If you believe that has happened in your case you can contact the attorney and ask them to file the Will with the court or deliver it to the nominated executor. You should not be charged for this nor are you required to use that attorney to help you do a probate.
Curious about the probate process? Check out our other blog posts in this series. Want to help with a probate? Phinney Estate Law offers free ½ hour consultation to all probate clients. Call to schedule your consultation, (206) 459-1908, or email us at firstname.lastname@example.org.