The death of a loved one sparks many questions for the executor of the estate. If you’ve ever served as an executor before or know someone who has, you’re likely familiar with those questions. What did the deceased leave behind? What assets are there to maintain and distribute? What should be done with the deceased’s personal property?
Although those questions are common for an executor to face, one pivotal question is paramount for any executor: did the deceased have a will?
The process of finding out if someone has a will — often called a “will search” — is the crucial first step in the long probate process. A person’s will directs the distribution of assets after the individual has passed away, and the document is viewed as the final word in the deceased’s last wishes and directives.
Finding out if someone has a will also determines whether the individual died intestate (without a will) or testate (with a will).
Dying intestate creates legal headaches for the deceased’s family and slows down the entire estate settlement process. And believe us, it's already long enough.
It's prolonged because without a will to appoint an executor, the court must choose one to preside over the administration of the estate. This involves the state earlier on in the process and extends the to-dos by a few steps.
Dying intestate also means being subject to a jurisdiction's intestate laws, which means an individual who would not typically have been chosen by the deceased could end up serving as the administrator over the estate. And if hopeful beneficiary isn't considered next of kin, this could mean they lose their inheritance.
This is why wills are considered the most important probate document.
So, how do you find out if someone has a will?
How to Find Out if Someone Has a Will
If you don’t know where the deceased’s will might be, there are a number of places to begin the will search: the deceased’s local clerk of court, house, personal safe, safe deposit box, family members and friends, attorney office, and bank are all good places to start.
I know, it seems overwhelming. But let’s take a look at each individual step to see where the will might be found.
Contact the Local Clerk of Court
Assuming you are fairly certain the deceased had a will, the first place where a will might be found is at the local clerk of court. After an individual passes away, the individual’s will must be filed with the clerk of court in the county where the individual lived.
In many states, however, wills can be filed with the local clerk of court prior to death. Some individuals choose to pursue this option because the clerk of court will ensure that the will is securely held for safekeeping.
Here’s where things get a little tricky. If the deceased moved between states— or even counties — during their lifetime, it is possible that they filed a will with a clerk of court in a different county than the county that they lived in when they passed away.
If you can’t find the will at the local clerk of court, you might need to do some digging into the deceased’s past residences. Where did they live before moving to their current county?
If you still cannot locate the will after checking in with the counties where the individual once lived, it’s time to start asking family and friends.
Ask Family Members and Friends
The deceased’s family and close friends can be a helpful resource as you search for the will. Anyone who was close with the deceased may be able to provide insight into if, when, or where the deceased signed a will.
In some cases, the deceased may have asked close friends to serve as a witness to the signing of the will. Those individuals will certainly prove to be invaluable in locating the will.
Although it might seem obvious, it is important to remain impartial as you ask family members about the location of the will. Remember, those individuals likely have a stake in what the will says — and they might benefit if the will is not actually found.
It seems a bit dramatic to say, but “will contests” — a.k.a. probate proceedings where beneficiaries dispute the validity of a will — don’t just happen in movies.
Family members who serve to benefit from the deceased’s will may have ulterior motives in helping you locate the will. Impartiality is key when asking family members to help you find the will.
Ask the Deceased’s Attorney
Another way to find out if someone has a will is to contact the attorney that the deceased worked with during their lifetime. It’s highly probable that the attorney assisted in the drafting and notarization of the will.
Many individuals who create a will choose to keep the will at the attorney’s office for safekeeping. A meeting with the attorney may reveal that the will is kept in the attorney’s office safe or locked files.
Just as individuals move around during their lifetime, individuals also work with different attorneys through the course of their life. If you know that the deceased worked with multiple attorneys, you may need to visit a few law offices to determine when the deceased created a will and where the will was kept for safekeeping.
Key Point: Although many individuals will often consult an attorney to help draft a will, many states do not require attorney approval to create a valid will. So the existence of a will might not always mean that an attorney had a part in the will’s creation.
Ask the Deceased’s Banker
Although not as common as employing an attorney to assist in drafting a will, some individuals choose to draft a will through their bank or local credit union. Many financial institutions offer will-drafting services, so it is possible that the institution has a record of the will’s creation.
Just like some individuals choose to keep their will at an attorney’s office for safekeeping, some individuals may choose to keep their will at a local financial institution. It is possible that the bank or credit union will be able to guide you to the original copy of the will.
Look in the Deceased’s Personal Safe
If the deceased had a safe in their home, they may have kept the original will in the safe to ensure the document’s protection. Although this seems like an obvious place to search, the deceased’s safe can often pose problems if the safe’s combination is unknown or if the safe key is missing.
If you can’t find the key or don’t know the combination, you may need to consult with an expert locksmith to open the deceased’s safe. If you are doing this, however, make sure you have documentation of your decision to open the safe. You should also ensure that witnesses are present when the safe is open.
Atticus Advice: Regardless of whether you have the proper tools to access the safe or need a locksmith’s help in accessing the safe, you should always have multiple witnesses present when opening the safe. Witnesses are helpful in preventing against will contests or disputes that might arise regarding the contents of the safe. If you are the only one opening a safe and do actually find a will, beneficiaries might claim that you placed the will in the safe. Beneficiaries might also claim that you removed some of the safe’s contents or did not take an accurate inventory of the safe. As with all decisions that an executor makes, having witnesses in place and keeping careful records is critical.
Look in the Deceased’s Safe Deposit Box
If you cannot locate the will at the local clerk of court, by asking the deceased’s family and friends, or by consulting the deceased’s attorneys or bankers, then your next best bet is the deceased’s safe deposit box.
Safe deposit boxes are exactly what their name implies. They are small metal boxes that individuals can rent or lease at banks or credit unions. The purpose of these boxes is to store valuables and other items that are difficult to replace.
Many individuals put social security cards, property titles, marriage licenses, family photographs, collectibles, and other heirlooms in safe deposit boxes. We’ve compiled a list of some of the most common items found in safe deposit boxes here.
Individuals often put the original will in their safe deposit box in an effort to ensure that the document is protected. While this might seem like a good idea, keeping a will in a safe deposit box is one of the worst estate planning decisions an individual can make.
Atticus Advice: A safe deposit box is not a good place to keep a will. Boxes are “sealed” after the original renter’s death, so the executor will likely need to obtain a court order in order to even search the box for the will. Although boxes can often be co-leased between two individuals, some states still have laws preventing access to the box when only one of the individuals passes away.
If, as the executor, you are reasonably certain that the will is in the safe deposit box, you will likely need to gain court approval. But to obtain court approval, most states require that the executor provides the deceased’s will and a certified copy of the death certificate. If the will is sealed within the safe deposit box, the executor may not be able to prove that he or she has been named as executor in the will.
You can see the Catch-22 that occurs. You cannot search a safe deposit box unless you can prove that you are the executor. And you cannot usually prove that you are the executor without a copy of the will, which is in the safe deposit box.
To learn more about your state’s regulations for safe deposit box access, check out this resource that we’ve compiled here.
Look in the Deceased’s House
So you’ve looked everywhere for the will and just can’t seem to find it. You’ve checked with the local county’s clerk of court, but no document exists there. You’ve talked to family and friends, consulted with attorneys and bankers, and even scoured the deceased’s personal safe. You even managed to gain court approval to look in the safe deposit box, but you still don’t see the will.
It’s not time to panic yet. The treasure hunt now truly begins.
You’ll need to look through the desks, library shelves, cupboards, coffee tables, and closets of the deceased’s house. You’ll need to take a look at all the documents, letters, and piles of miscellaneous paperwork that might be gathered around the house.
You might think that you just need to look for an official document with signatures and a notary’s seal. But you don’t. You need to be looking for much more than that.
Here’s the catch — wills come in all shapes and sizes, and some states allow any handwritten document to serve as the will. It doesn’t matter if it’s on a piece of tissue paper or a used napkin; if there is any sort of written document directing distributions or stipulating estate planning arrangements, it might serve as a valid will.
Atticus Advice: Wills aren’t always official-looking documents, and there are two types of written wills: attested wills and holographic wills.
- Attested Wills: These documents are the signed and witnessed legal documents that we typically think of when we think of wills.
- Holographic Wills: These are wills that have been written by the deceased not but witnessed. Holographic wills cannot be typed or written digitally, as it is the deceased’s handwriting that proves the validity of the document. These wills are sometimes called “soldier’s wills.” To learn more, check out our guide to the different types of wills at our resource here.
Wills can be found in strange places, so don’t overlook any nook or cranny of the deceased’s home. There are stories of wills being found in freezers, shoeboxes, between the pages of a book, and even behind photographs in frames. So don’t hesitate to look somewhere because you think the deceased wouldn’t put a will there—believe us, it’s been done before.
Finding out if someone has a will is not an easy process. It can be difficult and laborious to locate the deceased’s will, but finding the document will ultimately determine whether the deceased passed away intestate or testate. And that difference will have a huge impact on the difficulty of the entire probate process.
In summary, you should do the following to find out if someone has a will:
- Contact the local clerk of court
- Ask family members and friends
- Ask the deceased’s attorney
- Ask the deceased’s banker
- Look in the deceased’s personal safe
- Look in the deceased’s safe deposit box
- Look in the deceased’s house
Keep in mind that this is still generalized advice. So much of the probate process depends on the specific state laws of the estate.
Also, if you know or suspect you'll be serving as the executor, one of the other main things you'll have to do is compile an inventory of assets — essentially a list of everything the deceased owned. Having something that handles all the required calculations and helps with categorization saves a crazy number of hours. Plus you can classify the cost as an estate expense instead of using your own money. If that sounds interesting, check this out.