How to Find a Will

Video

Introduction

Hi folks, it’s Andy Stautz at Stautz Law. I am back for another talk about Indiana probate. Today’s talk is how to find the will, which is a problem that comes up more often than you’d think.  

Basics: Deciding if Estate is Testate or Intestate

But the first step in administering a decedent’s estate is deciding whether there’s a will or not and presenting the will for probate when it’s time to do so. You need to know if there is a will and you need to find it.  

Best Practice: Plan Ahead

The best way is, of course, for the decedent, the person who made the will, the testator, to have told other people where the will is to be found and make sure those people, whoever it is, the designated personal representative, ideally, or just a family member, someone, can get to it.  

So I always tell my estate planning clients when they take their wills home: put it somewhere safe, but also somewhere where your people can find it when they need it. So not a safety deposit box at a bank that only you know about, for instance. That’s not useful. 

Obviously, there’s a desire for privacy and secrecy, and some people take that pretty far and it causes their heirs problems. It’s a behavioral risk. So best case scenario, we know where the will is because someone was told and they go find it. It’s great. Okay.  

Other Possibilities: Will is Lost

Obviously, a will can be just straight up lost. You know there was a will, but it’s gone. There are ways around that. including having witnesses come forward and describe the circumstances. I’ve talked about that in a separate talk. The problem with those aspects is how sure is the, you know, when you’re going to look for a lost will, how sure are you that there actually is a will?

When you’re going to look for a lost will, how sure are you that there actually is a will?  

I hear over and over again a client or a lead say, I’m sure he made a will. He crossed all his T’s, he dotted all his I’s. He was that kind of person. And unfortunately, you know, it’s all too common. Sure, you think you’ve done everything, but that doesn’t mean it really existed or that they really got around to it. Because people procrastinate about these things. Okay, so that’s #2.  

How to Get the Will from Someone Else

Number 3 is You think there’s a will and you think someone else has it. What about that? Well, the good news is you can open a probate, you can open a probate administration and then use the court’s power to call the will forth. So one way to find the will is to open a probate and then apply this section, Indiana Code 29-1-7-3, Produce will in court, contempt damages. So basically you demand the will from whoever you think has it and they have to show up with it on penalties of contempt. So that’s a possibility too. A bit more of a rare situation.  

I’d say the most common are the person who made the will hid it too well or There actually isn’t a will.  

Informal Search for Will

And then there are, of course, the issue of the old lawyer who’s got a bank full of wills in a building somewhere and then retires. And the original will is in some lawyer’s files that hasn’t been seen since the 70s. So in that case, it’s kind of a game of telephone. You kind of put out the word and say, has anyone seen the last will of? Does anyone remember working with? But that’s informal, infrequent, and doesn’t often work. So that’s kind of last ditch.  

Conclusion

Hope that talk was useful in terms of just the general landscape of finding a will. Obviously, for specific legal advice, you need to actually consult with a lawyer and not just watch informational videos. You’re on my website, so you can give me a call. You can e-mail me. I’d love to talk about your specific situation. Thanks for watching. Bye for now.