In our 21st century world, an increasing amount of our lives play out online in the digital realm. We pay our bills online, submit our taxes and apply for licenses. Despite this, some legal documents remain stubbornly in the physical realm. One such document is a will, and it’s surprisingly common for this crucial legal document to go missing when it’s needed most. What should be done if the will of a deceased family member can’t be found upon their passing?

When a family member dies, it’s a somber time of reflection and celebration of their lives. One of the greatest signs of respect we can pay these individuals is to ensure their final wishes are carried out via their will. Often, the family member in question simply won’t have told anyone where they keep a physical copy of their will. The first step is to make sure you’ve looked in all the right places. Common places to check include:

•   Safety Deposit Boxes: Consider approaching banks where the deceased held accounts and check if they had a safety deposit box in their name.
•   Their Home: Check any locked cabinets or a safe (if one is present)
•   Law Firms: If you know the deceased was a client of a particular law firm, give them a call. If you live in a small town, call around to all the law firms and double check.
•       Financial Advisor or Accountant: Check with any financial professional they worked with as it’s possible they could have kept a copy with them for safe keeping.
•       Check with Family: A close friend or family member of the deceased may know where they liked to keep valuables

Alternative Steps to Locate the Will

If you’ve carried out the above steps and the will hasn’t turned up, there are still some great options to try. First, perform a Search of Wills Notice. This step is mandatory when probating a will or applying for a grant of administration. This quick legal step will immediately flag if the deceased registered their will with the Wills Registry and should also note the date it was registered and the location.

Use a Copy of the Will

If a copy of the will is all that can be found, it’s still fit for use in the eyes of the law. When probating the will, you will need to sign an affidavit explaining the reason for using a copy. You will also be required to swear or affirm you carried out a thorough search for the original will in each place it could reasonably be expected to reside. However, note that the copy is less desirable than having the original will. If there are disputes from other individuals with an interest in the estate about the authenticity of the copy, this may pose some additional legal hurdles.

Ensure Beneficiaries Are Informed

There is no official deadline by which you must apply for probate or a grant of administration. If you need more time to locate the  will, keep searching. However, it’s recommended to keep all individuals who may have an interest in the estate informed of your efforts to locate the will. If you do not apply for probate or a grant of administration within a reasonable period of time they may file a citation against you with the court, which you must respond to, otherwise the court may appoint someone else as executor or administrator. 

What if the Will or Copy Can’t be Found?

After all the searching, it’s still possible nothing will turn up. In this instance, a person qualified and willing to administer the estate must apply to court to be appointed personal representative. The estate will then be distributed according to the law of intestacy as though no will exists.

After the Will Process is Complete

Once the will has been executed, it’s recommended you keep it in a safe location in case it needs to be referenced in future. You should inform your executors where it is held, and provide them with a digital and/or physical copy. The will should also be registered with the provincial Wills Registry.

Find Out More

Westside Family Law can assist with any legal questions you may have surrounding the wills process or estate law. Contact us and we’ll be happy to assist.