If your loved one left his last will and testament with his attorney for safekeeping, the attorney can’t toss the will into a trash bin when he decides to retire or close his office. Not only do the laws in most states prohibit this, lawyers have an ethical responsibility to safeguard their clients’ documents. However, this might not do you much good if you can’t find the attorney to ask where he placed the will. You'll have to do a bit of detective work instead.
Finding the Attorney
Assuming he hasn’t died, you might be able to track down the lawyer who drafted the will. Call your state’s bar association to find out if it still has contact information for him. Check the phone directory for personal listings of people with the same name. Attorneys don’t often list their home phone numbers, even after they’ve retired, but if you can reach a relative and explain your situation, she might be willing to have the lawyer call you. You can also contact other local attorneys, especially those who practice estate law. Lawyers are often a tight-knit group and some of them may have stayed in touch with him. You can also search for information online and in the newspaper. The attorney may have made a major contribution to a charity recently or won a golf tournament. If you can find mention of him, the website or newspaper might have interviewed him. Contact them and ask if they know where you can reach him.
If you can’t find the attorney, you’ll have to figure out where he might have placed the will when he stopped practicing. Some state probate courts accept wills for safekeeping before the testator’s death. If yours does, call the court to see if the attorney transferred possession of the will to the court. If not, the court might have knowledge of where the lawyer did place his clients' documents when he left practice. In all likelihood, your loved one’s will was not the only one the lawyer retained. He probably stored them all in the same place and the court may have received calls from other clients’ families who are in the same predicament you are.
Although your loved one’s attorney probably kept the original will, it’s customary that he would have sent a copy home with his client. This can be important if you don't find the original. If you can't find the attorney, and if you can’t determine where he put his documents when he stopped practicing, consider what your loved one might have done with the copy he retained. Question people he might have chosen as executor; he might have given the copy to that individual. Go through his paperwork and his favorite possessions. He might have hidden the will in his most-loved book or Bible. Check his safe deposit box. You probably won’t be able to do this without an attorney’s assistance, but if you haven’t found the will by this point, you’ll most likely need a lawyer anyway.
If the Will Can't Be Found
In most states, if you fail to locate a will, the law presumes that it’s because your loved one revoked it before his death by destroying it. The court will probate his estate as though he died intestate -- that is, without a will. However, if you were able to find a copy, you can try to convince the court to honor it. This might be a complicated legal battle because certain criteria apply before a court will accept a copy of a will. However, if his attorney disappeared, this may be enough to have the copy probated. If this is the case, confer with an attorney.
- Leanna Hamill: How to Find a Lost Will (or at Least Where to Look)
- New York City Bar: Formal Opinion 1999-05
- The Law Offices of Adrian Phillips Thomas: Missing Last Will and Testament – Lost or Revoked?
- Armstrong, Fisch & Tutoli: What Happens if the Will Is Lost?
- WeProbateFlorida.com: Can’t Find the Will? A Few Tips
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.