Keep Your Original Will In A Safe Place…
I recently had a case where the aunt of a client had passed away but we could only find a copy of her will. With some research, we were able to discover that the original will, drafted in 1985, was kept by the Nevada attorney after it was drafted and signed by the aunt. That was apparently his office policy and some attorneys do have this policy (my firm does not). When the Nevada attorney retired a few years ago, he apparently sent the original will to the decedent aunt by mail, with a note explaining he was retiring and to keep the original will in a safe place.
However, the original will was either never received by the aunt, or, more likely, at some point, got thrown out. In the copy of the will, my client was listed as the alternate beneficiary and alternate executor after her uncle and her mother, who had both predeceased the aunt. Accordingly, when aunt died my client was to be the executor and to receive everything in the estate. Luckily, most everything in the estate had been placed into a trust and my client was named the alternate trustee of that trust.
The only asset left out of the trust, and thus part of the probate estate was a pesky bank account, having a value of just under $15,000.
Since the probate court requires an original will and we could not locate it, we had to file an affidavit from the client explaining the circumstances of when and how the original will was lost, what steps were taken to try to locate the original, who else assisted in this process and the circumstances of the Nevada attorney sending the will and it never being found.
We also filed a Petition to Admit a Copy of a Will in St. Charles County Probate Division and had to set the matter for hearing. It’s a somewhat uncommon issue, so there was a little confusion between the court staff about what needed to be filed. We ultimately filed everything that was needed and were able to secure a hearing date after a few months.
There was a bit of pressure on both my client and myself. If the will was not admitted, then the aunt would have been deemed to have died intestate (without a will). Under Missouri law, my client and each of her many cousins would be entitled to an equal share of the bank account.
At the hearing, my client was put on the stand and had to give testimony related to the lost will, including the facts related to the last few months of her aunt’s life, when she had moved to and lived in St. Charles County. My client was very close to her aunt and this was upsetting for her having to recite these things in open court, including the care she took of her aunt around the time of her passing.
Happily, based on our filings and my client’s testimony, the court correctly found there was sufficient evidence to admit the copy of the will as the original and the proceeds of the account were, pursuant to the terms of the will, distributed solely to my client.
Now that this matter is behind us, I figured this story would make for a good example of the importance of keeping your original will, and all of your original estate planning documents, in a safe place.
