Do you know where your will is located? Is it in your safe deposit box? Did you put your will in a safe in your home or is it in a file cabinet in your office? Because you do not “file” a will until the person has passed away, it can be easy to store your will in a safe place and then forget where you put your will.
Because your heirs will need the original copy of your will to probate; therefore, it is very important that you put the original copy somewhere that your heirs can locate it when you pass away. However, if your heirs cannot locate the original copy of your will, they may still be able to probate your estate as if they had the original copy.
Formal Testacy Without the Original Will
Under MCL 700.3402(1)(c), if you do not attach the original copy of the will to the petition for formal probate, you must state whether the will was destroyed, lost, or otherwise unavailable. The contents of the original will must also be explained in the petition.
Before the court will allow the estate to be probated without a copy of the original will, the person filing the petition for formal probate must prove to the probate court that the original will was the last will executed by the deceased, the deceased did not revoke the will, and the will was executed in accordance with the laws governing wills in Michigan. The court will decide each case based on the unique facts and evidence presented by the petitioner.
Another important law to keep in mind is that destroying an original copy of a will revokes the will. Therefore, the court will presume that the decedent intended to revoke the will by destroying the original copy if you cannot present the original will to the court. You must be able to offer evidence that overcomes the presumption that the decedent destroyed the original will to revoke it and that is the reason you cannot find the will.
Again, the probate judge will listen to the evidence presented and weight that with the circumstances to decide whether to allow the case to continue under the terms of the will without the original copy of the will.
Have You Lost Your Will?
Our Brighton estate planning attorneys recommend that you regularly review your will to make changes as needed. You need to review your will whenever you have any major life changes such as the birth of a child, marriage, loss of an heir, or divorce. However, if you do not have a reason to review your will, you should still do so every few years just to be sure the terms of the will are aligned with your current desires.
By reviewing your will on a regular basis, it requires you to “find” the original copy of your will. If you cannot locate the original copy, you can take care of the problem right now instead of leaving that burden for your heirs to deal with after your death.
If you cannot locate the original copy of your will, the best way to deal with the problem is to create a new will. A new will would revoke any previously executed wills, even if someone were to show up with an original copy of an old will. By creating a new will, you ensure that if the old will turns up, that you have a new will that reflects your current desires for your estate. If you do not take any action, one of two things could happen.
Your estate could proceed under Michigan’s intestate laws. The intestate laws may not align with your wishes for distributing your property to heirs. In addition, if someone was to show up with an old original will, this old will could supersede a more current will when the current will has been lost or accidentally destroyed.
Do You Need Help with a Destroyed or Lost Will?
The Brighton estate planning lawyers of The Elder Care Firm of Christopher J. Berry, CELA can help you execute a new will to ensure your current desires are reflected in your will. If you cannot locate the original copy of your loved one’s will, our probate attorneys can help you prepare the petition for probate, including the evidence that you need to prove your allegations. You are going to need an aggressive attorney on our side as you fight to ensure your loved one’ wishes are carried out.
If you cannot find your original will, contact our office to schedule a time to discuss executing a new will. Call our office at 888-390-4360 or use the contact form on our website to schedule your appointment with a Michigan estate planning lawyer. Our primary office is in Brighton, but we also have satellite offices in Bloomfield Hills, Novi, and Livonia for your convenience.