Can’t find a loved one’s original Will after they die? What to do next

Searching in vain for a loved one's original Will when you are the executor can be a stressful experience.

The law demands that you submit the original Will to be proved when you apply for probate at the Probate Registry - this basically means getting the required permission to deal with and distribute the estate of the person who has died.

But what on earth do you do if you can't find the original Will? What does it mean in terms of administering the estate and ensuring that all the beneficiaries receive their inheritance?

The first thing to remember is, don't panic. There are a number of ways you can trace an original Will after someone has died.

Finding an original Will:

• Ask friends and family - someone may know where the Will is kept;
• Search the house - sounds obvious but this is where most people keep their Will. Get agreement from family members first and then look in any safes, locked drawers or areas where you think important letters and documents may have been stored for safe keeping. Studies and attics are also worth investigating;
• Check with their solicitor - if they used a solicitor to write their Will, the solicitor should have securely stored the original version. If the solicitor is no longer in business, contact the Solicitors Regulation Authority's Intervention Archives Department. The SRA holds the records of many practices which have closed down and may be able to track down a specific Will for you;
• Try their bank - it's possible the Will is stored here and will usually be handed over to an executor on the production of the death certificate and relevant ID;
• Contact Certainty, the National Will register (endorsed by the Law Society), which records the existence and tags the location of the Wills of the seven million people who have signed up;
• Get in touch with the Principal Probate Registry in London which has a Will storage facility to see if it holds the original Will you are seeking.

Found a copy, but not the original?

If you manage to find a signed copy of the original Will, or even a photocopy or some other evidence of the original Will's contents, it may be possible to submit this to the Probate Registry to be proved.

'Proving' means establishing that the copy is a valid public document accepted as the 'true last testament' of the person who has died and ensuring as far as possible that they didn't change their mind and destroy the original.

The Probate Registry will either give permission to prove the copy of the Will or refuse it. But before it does so you will need to:

• Submit a sworn affidavit confirming in detail the circumstances surrounding the loss of the original Will and the efforts the executor has made to track it down;
• Supply evidence that the person making the Will (known as the testator) hadn't changed their mind and revoked their Will by destroying the original. This might include things like providing examples of how their stated wishes remained the same throughout their life and how their relationship with proposed beneficiaries remained good;
• Draw up a 'reconstruction' of the Will if no copy can be found. This needs to include strong evidence of how the testator didn't change their mind - for example from any solicitor involved in drawing up the original or from the testator's own correspondence or paperwork;
• Provide details of anyone who would benefit if the copy of the Will is not proved but who would benefit under the rules of intestacy which come into play if someone dies without a valid Will in place;

Help from the Courts

Sometimes, the issue of whether a Will has been lost or destroyed is crucial to who inherits - as a recent Wards Solicitors' article Rip it up and start again? How to safely change your Will - highlights.

In this case, the judge concerned decided that though the original Will could not be traced, a certified copy found in the deceased person's possessions could determine how her estate should be distributed.

The importance of a valid Will

Of course, sometimes the reason you cannot find an original Will is that the person who died never made one. There are currently thought to be at least 31 million people in the UK in this position.

Dying without a Will, means the estate must be shared out according to certain strict rules. For example, only married or civil partners and some other close relatives can inherit under the rules of intestacy.

A correctly drawn, and regularly updated Will, is an inexpensive way of avoiding difficulties for your relatives and friends in the future in the event of your death. It puts you in control of the final destination of your estate.

Wards Solicitors will safely store your original Will for you. There is no charge for this service.

For help and advice about making or reviewing your Will or the steps involved to submit a copy of a Will to the Probate Registry, please contact Wards Solicitors' Wills, Probate and Mental Capacity team.