Losing a loved one is one of the most challenging instances of the human experience. In an ideal world, we could focus solely on the grieving and healing processes. However, because we live in a modern society that is upheld by laws and due process, there are certain administrative duties that cannot be ignored.
When an individual passes away, their estate must go through the probate process before it can be distributed to his or her heirs. Their Will is a key estate planning document that determines the manner in which this should happen. However, what happens if a Will is not filed? Running into bumps along the road can make the grieving process feel even more upsetting. We’re here to help! Here’s what happens and what to do if a Will isn’t filed in the state of California.
What happens if a Will is not filed?
There are many different options on how to store a Will, especially since there are no regulations pertaining to the storage of Wills. Here, it’s important to draw a distinction between the different methods of “filing” a Will. Some may file their Will away at home, file it with an online Will registry, or with the local probate court.
There are many different places that a Will could be stored at home. Some popular options include a file cabinet, a fireproof safe, or a locked desk drawer. You could also store your Will outside of the home. For instance, you could store your Will in your safety deposit box at the bank. Alternatively, if you worked with an attorney to create your Will, most law firms offer storage systems to safeguard original Wills.
If you’d like to help your loved ones easily locate your Will in case it gets lost, you can also choose to file your Will with an online registry. There are companies that store information regarding your Will online, typically for free. This data is compiled by the National Will Registry, which allows family members to search a nationwide database to search for estate planning documents that may have been lost or misplaced. It’s important to note that the Will itself is not filed; rather, you’re registering information regarding its existence and storage location so that it can later be located.
Last but not least is the method of filing the Will with the probate court. This can be done by two different individuals. First, the Testator (the person who created the Will) can sometimes file the Will with the local probate court before they die. States that offer a “Probate of Wills” will keep Wills safe and on file. The document will remain private information until the individual who created the Will passes away. If and once the probate court receives notification that the Testator has passed away, then the Will becomes public record.
The second type of individual who can file a Will is someone who has possession or custody of a Will. When the Testator passes away, then that person is typically required by state law to file it with their respective probate court. This allows the court to make the Will public record and open probate for the estate. If that person fails to file the Will within the filing deadline set by the state, then they could face civil and criminal charges.
So what happens if a Will isn’t filed? When a loved one passes away, things can get complicated quickly when a Will can’t be located.
Family members may not be aware whether a Will was created or not. This is an important difference, because if the loved one died without a Will, then their estate must be distributed using intestate succession laws.
If a Will was created, then efforts to find it must be exhausted. If you are having trouble locating a Will, try the following tips on how to find a Will in California.
How to search for a Will in California
If you find out that your loved one has passed away, start by checking with your local probate court. Your loved one may have filed the Will with the court before they passed away. When the court receives notice that they have passed away, the Will becomes public information. Alternatively, the decedent’s named Executor is required by law to file the Will with the probate court in a timely manner. If they fail to do so, they are held legally liable. If you are not sure who your loved one may have nominated as Executor to their estate, then it could be helpful to wait and see if the Will gets filed with the court.
If the Will hasn’t been filed and isn’t made public information within a reasonable timeframe, then it’s time to start doing some digging.
First, you can check the most popular storage locations for Wills within the home, such as in safes, desk drawers, and filing cabinets. Based on your loved one’s personality, you may get a hunch for a hiding place such as under the mattress or even in a zip lock bag in the freezer! You can also check with the bank’s safety deposit box, although you’ll need to be authorized to gain access to it.
Next, find out whether your loved one worked with an attorney or a financial professional. Most law firms provide document storage solutions, and often store Wills on behalf of their clients. Another possible professional your loved one could have worked with as their financial advisor. Even if they do not necessarily have the Will on hand, they may be able to clue you in as to whether or not a Will was created.
Last but not least, don’t forget to check online Will registries. For a small fee, you can conduct searches through national databases in case your loved one registered information about their Will’s whereabouts online.
When you’ve exhausted all of the options on how to find a Will and still cannot locate it, then it could very well be that your loved one died intestate. This means that the estate must pass through probate without a Will; assets and property are distributed per state intestate succession laws and next-of-kin rules.
Ensure that your loved ones can find your Will
As you might imagine, what happens if a Will is not filed can leave your family members feeling frustrated and confused. First, there’s the mystery of whether a Will exists in the first place. Searching for the Will could feel like a wild-goose chase when you don’t know that you’ll ever find it.
Second is the principle of creating a Will. Because you went through the time and effort of creating a Will for the sake of your loved ones, it would be a detrimental waste if they can’t find it and end up having to go through the intestacy process anyway.
This highlights the idea that making sure that your loved ones can find your Will is almost as important as creating the Will. After all, a Will that can’t be found is essentially useless. If you decide to store your Will in a safe, private location such as a legacy drawer, be sure to make it such that your loved ones know where it is and can access it when you pass away. Registering your Will with a national registry is a great idea to ensure that the existence of your Will is known. Last but not least, consider proactively filing your Will with your local probate court if the option is provided. Take our free quiz to see where you should get started, or compare our different estate planning and settlement options today!
Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.