What happens if I can't find a Will?

After the death of a loved one, you will understandably be grieving, feeling many different emotions and adjusting to this new chapter in your life.  You may also be faced with the administration of their estate, however if you aren’t able to locate the Will this could raise more questions and delay matters at an already difficult time. Naomi Walton, Paralegal in our Private Client department, explains more here about how you can proceed if you’re not able to find the Will and what rules apply in this situation.

Why should I write a Will?

There are many different reasons why you should write a Will and while it is a daunting prospect considering the future without us in it, unfortunately none of us know what lies around the corner and having a Will in place is the only way we can ensure our wishes will be met and our estate distributed as we wish. 

Having a Will in place allows you to:

• Distribute your estate as you see fit, even specifying in detail which assets you wish to go where if necessary.  This can be particularly useful if you have a large estate, you are an unmarried couple living together, you are divorced or you have children from a previous relationship.
• Appoint your Executors who will oversee the distribution of your estate.
• Confirm who will be the guardians of your minor children, if they are required.
• Detail any Trusts that are to be set up.
• Discuss options to reduce the likelihood of Inheritance Tax being payable upon your death.
• Specify any particular wishes you have regarding your funeral.

After you have written your Will, you should let your family or friends know where your Will and any copies are stored. This may also be the time to discuss with them the contents of the Will, particularly if there are likely to be any instructions they are not expecting, as this can then reduce the risk of disputes in the future.  If you have used a Solicitor to draft your Will, this will usually be stored at their premises, providing you with a receipt to confirm the address and how to obtain the Will in the future. 

Without a Will, you would be dying intestate which means that your estate would be distributed according to the rules of intestacy in the following order:

1. Spouse/civil partner
2. Children
3. Parents
4. Siblings
5. Nephews and nieces
6. Grandparents
7. Uncles, aunts and cousins
8. Half-uncles, half-aunts and half-cousins.

How to find a lost Will

In some situations you may not be aware if there is a Will or where the Will is located, perhaps if your loved one passed away suddenly.  In these circumstances, we would recommend the following steps be adopted:

1. Search their home.  This will hopefully help you locate the Will itself, a copy of the Will or the receipt of the Solicitor where the Will is stored.
2. Contact their Solicitor, if you are aware of their details.  If you are unsure of who their Solicitor was, you can phone their local law firms and try and ascertain whether they used them.  If this is successful and you locate the Will through a Solicitor, you will be required to provide the death certificate and proof of your identification to obtain the Will, as long as you are named as an Executor.
3. If the law firm that drafted the Will is no longer operating, you can contact the Solicitors Regulation Authority who may be able to confirm who took over the law firm and where the Will may be stored now.
4. If you are unsuccessful with the property or law firms, you could contact their bank as occasionally banks may hold this on their behalf.
5. Alternatively, you could use the National Wills Register or carry out a Will Search using a specific organisation which may be a chargeable service. 
6. Finally, the London Principle Probate Registry may be able to shed some light on the storage of the Will.

Can I apply for probate without a Will?

Generally, in order to apply for the Grant of Probate you will need the original Will.  However, if you have carried out the searches for the Will as detailed above, you can use a copy if you have found that with a signed affidavit confirming that you have taking all reasonable steps to find the original.

If you are also not able to locate a copy of the Will, then the application for probate will need to be done under the rules of intestacy.  In this situation, a Grant of Letters of Administration would need to be applied for, opposed to a Grant of Probate, by the person who is set to inherit the estate based on the order of intestacy.  If more than one person is equally entitled to apply for probate up to four people can apply together.

“Losing someone close to you will be devastating and when faced with making arrangements for the estate, locating the Will is just one thing that can remove some of the stress and burden,” concludes Naomi.  “We are here to assist and help you in any way that can support you during this difficult time with patience and respect, whether that is applying for probate or the estate administration.”

To discuss your situation with Naomi or a member of the team, you can contact us today on 01329 222075 or email privateclientenquiry@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.