What To Do When Estate Planning Documents Can't Be Located

Opening a probate case can be emotionally, financially and mentally draining. Estate planning documents exist to speed up the probate process, but it’s hard to know how to move forward when your loved one’s documents cannot be found.

There are a few steps you can take before filing the probate case as intestate – meaning that the deceased person passed away without estate planning documentation. Our blog features few suggestions on what to do in attempt to locate the estate plan and what happens if you ultimately cant find it.

Although a copy gives you good information, it is very difficult to probate a will with just a copy. Legally, the presumption is that the estate documents were either destroyed or revoked if the original is not available.

It’s important to speak with an estate planning attorney to understand whether a copy of a document is sufficient to move forward and what your alternative options may be.

Lockboxes and Safes

One place where people commonly keep these kinds of documents is a lockbox or personal safe. These areas are typically safe from fire or flooding and common places for an individual to keep important records.

A safe is easily found as it will need to be in a place large enough to accommodate it. A lockbox may be kept in a home office, file cabinet, or bedroom, but some individuals keep them in areas that are not usually accessed, such as special drawers and even attics.

It is important to know the location of any documents of this sort, as well as any passcodes needed to gain access to said documents. Knowing this information helps to smooth the probate process.

Check with an Attorney

The attorney who drafted the documents often keeps originals, signed copies, or digital copies for the people they do estate planning work for. If your loved one had an attorney, there may be correspondence, a business card, a checkbook entry, or a line item on a bank statement somewhere in their belongings.

Once you contact the attorney, however, it’s important to understand that he or she may not be able to release any information to you unless you are named as a trustee or executor. But the attorney may, upon learning of the death, then notify the person named in the will or trust.

If an attorney is reluctant to discuss details with you, you may need to get the assistance of a closer immediate family member.

Total Loss of Estate Documents

If no one is able to locate estate documents for your loved one, you may have to proceed as if there aren’t any.

In the case of a loved one who has been determined mentally incapacitated, family members will need to proceed with establishing guardianship for that individual. If the loved one has died without a will or trust, they will have died intestate, and the court will then appoint a representative and handle the probate process. Unfortunately, this can be a time-consuming and frustrating process.

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