What Happens If You Can’t Find Someone’s Will?
Imagine that you’re an estate executor or a family member, and you need to begin the probate process. But when it comes time to submit their Last Will and Testament, you cannot find the document. You’re not sure whether it’s lost, someone accidentally threw it out, or it’s filed somewhere that you’re not aware of. What can you do?
Georgia’s Laws on Filing a Will for Probate
Under Georgia law, a person who is in possession of a will is required to file that document in the appropriate probate court “with reasonable promptness.” (Georgia Code 53-5-5). Reasonable promptness usually means soon after a person’s death. If a family member or the estate executor has someone’s will but doesn’t submit it for probate, that person could face civil and criminal charges, including fines and imprisonment until the will is submitted to the probate court. (Georgia Code 53-5-5).
Can’t Locate the Will
Georgia law does allow the executor or interested persons (those who will benefit from the estate) to file a copy of the will with the probate court. But in order to do that, the person must also explain why they’re submitting a copy (instead of the original), proof that the beneficiaries consent to probating a copy of the will, as well as evidence that the original will was lost. Evidence usually includes affidavits from the witnesses who signed the original will. The court requires these materials because they are making sure that the document was truly lost and not intentionally or unlawfully destroyed.
If the executor has searched through the individual’s personal paperwork and contacted their attorney and the county clerk – and still can’t find the original will or a copy – then the probate court will presume that the individual intentionally destroyed it. The person will be considered to have died intestate (without a will) and the distribution of their assets will be governed by Georgia law. This presumption, however, is rebuttable. If someone other than the individual who drafted the will was the last person to have possession of it, then the probate court may hear evidence about the will being accidentally lost or misplaced. The court will want evidence related to the terms of the will, the character of the person who drafted the will, the relationship between the person who drafted the will and the beneficiaries of it, how the will was lost or destroyed, and other relevant information. In this complex situation, it is best to consult with an experienced probate attorney about your options.
Be Proactive: Safeguarding Your Will
If you have completed your estate planning and want to make sure your documents are safe and easily located, there are a few places you can store them:
- Home Office: Storing your estate plan at home is a convenient option; just be sure that the document is in a container that is waterproof and fireproof. The container should have a lock on it, and it should be difficult to remove it from your home.
- With Executor: Leaving your will with the person responsible for probating your estate can help streamline the process. The executor should keep the documents in a waterproof, fireproof, and locked storage container.
- With Estate Planning Attorney: Typically, the attorney who helped draft your estate documents will agree to store them for you for a nominal fee. You can trust that the contents of the documents will remain confidential.
- Bank Safe Deposit Box: If you keep your will at your bank, you do not have to worry about natural disasters, locks, or prying eyes. However, be sure to let your beneficiaries know where the will is stored and grant them the authority to access it after your death.
- County Clerk’s Office: Many of Georgia’s county clerk’s offices will keep someone’s will on file, for a nominal storage fee. (Be sure to check with the clerk, first). This can also help streamline the probate process because the county will already have the documents on hand.
No matter which storage method you choose, to avoid confusion over the whereabouts of the will, be sure to let your estate executor and your trusted family members know where your documents are located and how to access them. These are your final wishes; you want to make sure your loved ones are able to carry them out.
Contact the Experienced Estate Planning Team at Brian M. Douglas & Associates
If you have additional questions about probating a lost will or safeguarding your own estate documents, please reach out to us at (770) 933-9009 or via our website. We would be happy to discuss the best options for you and your family.