The Importance of Original Documents in Probate

People sign their wills, put them in a safe place and then forget about them.  Many people put their will, or trust, in such a safe place that they forget where it is. Sometimes it’s so safe, and so secret, that their family members can’t find it. This can be a problem after death.  I had a case a while back where the husband died.  The husband and wife had been married about 15 years and built some assets up but for the most part their assets were “separate property” assets from before marriage and held separate.  The wife could not find her husband’s original will.  She was certain her husband would want to take care of her as the will provides she would get 100% of the estate. However, she couldn’t find the original.  Plus, to make matters worse, her step-children resented her and thus didn’t want her to inherit anything.

By law, if the will could not be proven, she would get 33% (1/3rd) of the separate property. The husband’s kids would get the other 2/3rds.  This was a decent size case and thus the different for this widow was several hundred thousand dollars.

By law it was her burden to prove the will was not revoked by her husband before death. She really couldn’t prove it.  The Court’s hands were tied as they have to follow the law.

At the 11th hour she called me and said, “you won’t believe it….”   Yes, she found the original will in her late husband’s backyard work shed.

So I guess the moral to this story is put your original will in a safe place but don’t make it so safe that nobody knows where it is when you die!

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