> If the original Will cannot be located, state law and the probate court will determine whether a copy can be accepted.
> It is important to locate your original Will or have a new Will prepared and executed.
> A complete estate plan can alleviate the costs of a missing document.
Do you know where your original Will is located? You should, and so should your executor. The dilemma of a missing original Will has come up in the death of Melissa Mathison, screenwriter of E.T. the Extra-Terrestrial (1982) and ex-wife of Harrison Ford. Mathison died on November 4th as a resident of California and is survived by her two adult children with Ford. According to reports, Mathison’s estate is worth approximately $22 million and her assets were held in a Trust, but the family has been unable to locate her original Will. While the original document is important, a properly funded Trust may allow Mathison’s family to avoid costly litigation over her estate.
Missing Original Document
In California, a copy of a lost or destroyed Will may be admitted to the probate court as long as the terms of the document are set forth in the order.[1] Once filed, an individual may contest the validity of the Will, leaving the final decision to the probate court. In Mathison’s case, it is likely that her two children will inherit her estate unless the terms of her Will are contested. However, not all states are so flexible when it comes to a lost or destroyed original Will.
Under Illinois probate law, if the original Will cannot be located, it is deemed to have been revoked unless the party seeking to probate the Will can prove otherwise. This is, of course, a sizable burden that can lead to significant legal and court costs to the estate and unnecessary family conflicts. Factors to be considered in determining whether the document remains valid at the time of the individual’s death include “evidence as to statements from the testator that [s]he did not intend to revoke the will, evidence that [s]he entertained a kind and loving attitude toward the proposed beneficiary under the Will up to the time of death, and evidence of other individuals’ access to the Will prior to death.”[2]
Non-Probate Assets
Only probate assets are controlled by the Will. Non-probate assets include assets held in Trust, accounts or assets with a living beneficiary, such as life insurance policies and retirement accounts, or jointly owned assets with a right of survivorship. Since these assets have a built-in succession, they do not pass by the decedent’s Will.
Therefore, if Mathison’s Trust was funded (assets retitled) during her life, those assets would circumvent her Will and the probate court and instead pass privately in accordance with the terms of her Trust. While those assets will pass as the decedent indicated, relying solely on beneficiary designations or joint ownership is not advisable since it can lead to unintended gifts or unnecessary litigation.[3]
Avoiding the “Lost Will” Scenario
Too often people invest in estate planning but, due to a seemingly minor loose end, fail to take advantage of the benefits of proper estate planning. Similar to an unsigned Will or unfunded Trust, a lost Will is likely to lead your loved ones straight to probate court.
The first way to help your family avoid this scenario is to locate your original Will and inform them of its location, commonly a safety deposit box or home office. If you cannot locate your original Will, it is important to have a new Will prepared and executed. Second, a complete estate plan should leave very few, if any, probate assets by way of your Will. By having a funded Revocable Living Trust in place during your life, you can ensure that your assets will pass to your loved ones as efficiently as possible.
[1] CA Prob. Code, §8223.
[2] In re Estate of Phillips, 359 Ill.App.3d 114, 121-22, 295 Ill.Dec. 689, 833 N.E.2d 895 (2005).
[3] Please see Siblings Battle Over Mother’s Joint Account, Issues to Be Considered Regarding Joint Accounts and How to Accidentally Leave a Gift to Your Ex-Spouse.