Family and loved ones only gather to hear the reading of a will and learn of its contents in the movies. In reality, there’s no great mystique about the document, at least after the testator dies. When the will is presented for probate, it becomes a matter of public record and anyone can see it. But, under some circumstances, getting a copy might take a little effort.
Notice to Beneficiaries
After a will is submitted to the court for probate, many states require executors to send notice to all beneficiaries and heirs within a certain period of time. For example, in New Jersey, the deadline is 60 days. If your family member left you anything in his will, or you would have inherited from him if he had not left a will because you’re his heir, you will likely receive notice that you have a right to request a copy of the will. The rules for who inherits if a decedent doesn’t leave a will vary some by state, but a few general rules apply. If your deceased family member was your spouse or parent, you’re almost certainly an heir. Otherwise, you would typically inherit only if the decedent was unmarried and had no children. If this isn’t the case and you’re not included in the will, you might not receive notice.
Contact the Court
If two or three months have passed since your family member’s death and you’ve heard nothing but ominous silence from the executor of the estate, you can go to the court and request a copy of the will. In New York and New Jersey, the County Surrogate would have it on file, but in other states, the probate court clerk would likely have it. Some progressive counties even make the documents available online. You can simply provide your family member’s name and date of death and get a copy, although there might be a small fee.
If the Will Isn’t Submitted for Probate
If the court doesn’t have a copy of the will, this may simply mean that no one has presented it for probate yet. If you know who the executor likely is, you can file a petition with the court in some states, demanding that the judge direct her to produce the will and open the estate. You can even open a probate proceeding yourself, without a will, and ask the judge to order whoever has the will to present it in court so the estate can be probated. A will might not exist, however, if your family member created a trust to pass his property instead. If this is the case, the trustee must follow notice requirements similar to those an executor must abide by, so you should receive notification that the trust exists if you’re either a beneficiary or an heir. You would have a right to request a copy of the trust documents, just as you could request a copy of the will. Trusts aren’t subject to probate, however, so if you’re not an heir or beneficiary, you would have no way of getting your hands on the trust’s formation documents.
Read More: Are There Time Limits in Will Probate?
If No One Has Found the Will
If you can’t find a will and no one in the immediate family has received notice that it’s been presented for probate or that a trust exists, you’ll have to hunt for it. If the deceased had an attorney, ask him if he has a copy. Check with friends to see if any of them were holding it for him. Find out if he had a safe deposit box at the bank and, if so, ask bank personnel about your state’s rules for accessing it to find out if there’s a will inside. If your search doesn’t turn up a will, your family member’s estate will pass to heirs according to his state’s rules for intestate succession – his spouse and children will probably receive his property and other family members would inherit only if no spouse or children exist.
- Long Marmero & Associates: How Do I Get a Copy of a Will?
- Law Office of David M. Goldman, Florida Estate Planning Lawyer Blog: How to Get a Copy of a Will in Florida
- Sacramento Press: Finding a Will
- Bergen County Surrogate’s Court: Notice of Probate – Proof of Mailing (PDF)
- Nolo: How an Estate is Settled if There’s No Will – Intestate Succession
- New York State Unified Court System: New York City Surrogate’s Courts
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.