What Happens When A Will Is Missing

Welcome to probate problems and practical solutions. Welcome back to probate problems and practical solutions with Carly Whiteside, owner of Copper Wren Law in Mesa, Arizona. Copper Wren Law focuses on probate, probate litigation, guardianship, conservatorship, and trust administration across the state. I'm Leanne Lyon and today we are diving into a discussion on what happens when a will goes missing. It's great to see you again, Carly. You too, Leanne. It's a Carly. How common is it for a will to come up missing when someone passes away in Arizona and what circumstances generally would lead to this happening? It happens more than I would like, but I would probably say only about 20% of my cases do we have knowledge that a will was done and now we can't locate it. The more commonly happens is the person that passed away had indicated, I did a will. Don't worry, you guys are taken care of but didn't indicate what attorney didn't indicate where the will was placed and so people go in looking for this will and can't find it. That's typically what I see. I do have some cases though where everybody knows there was a will there, everybody knows where it was and now one sibling, one friend, one neighbor has gone in the house to secure the house and now we can't find the will. In those cases typically there's a copy. Some family member has a copy. We have to go through the probate process and reverse engineer it where we get in front of a judge and we say we can't locate the original but we have a copy. We're not sure if there was an updated one. We don't think it was revoked and so that kind of takes us into either a regular probate with just an extra step or that sets us on the path for probate litigation. Would that apply to a digital scan of a will as well? So in Arizona, unless it is printed, notarized and witnessed, it's not a will. So we have had that too where somebody has brought us a laptop of the person who passed and said, look, there's a will on here. That sucks. That is a grocery list at best. The court needs it printed, notarized, witnessed in order to say that that's a valid will because the argument that the court uses is if they wanted that will, they would have taken the time to print it, haven't notarized and get it witnessed. And so we have run into that actually a little bit more recently where somebody's brought us a word document or a PDF and unfortunately we have to tell them that's just, it's completely useless, unfortunately, and people struggle with that, it's, oh, it shows intent, it shows the, and it's like, it doesn't because they didn't print it, they didn't notice it, they didn't witness it, it was just something they were thinking about. So if it's a photocopy of something that was, and it's a printed photocopy of something that was notarized and witnessed, how's that work? That's where we would go in and basically ask the court to say that this copy is verified. We can't locate the original, but we have a copy we believe is a through copy, it would have the notary stamp on it, it would have the witnesses on it, so we could put that forward and basically just ask the court that they say, yes, this is the will. No, you can't find the original, this was done, so obviously the original is somewhere per chance, but you have a copy. Okay. So legally speaking, what constitutes a diligent search for a missing will in Arizona before a court decides that the person died and test it? It's hard to say because there's not really guidelines, they'd have it laid out like if you do, if you check boxes A, B, C, then you've done the diligent search, it kind of goes back to the court of saying fair and reasonable, and so you search the house, you look in the desk where the other important papers are, if they have a safe in the house, we need permission to open the safe because some people put their state planning documents in the safe. If we have knowledge that there is a safety deposit box, we can ask the court for a very limited order to open the safety deposit box to see if it's in there, I've had that happen. That's about it. If you find an attorney's card on someone's desk and they do a state planning, give them a call, hey, was my parent or sibling in there to do a will, they've passed, we're looking at probate, did they have anything on file with you? And so that's really the extent of it. The court knows and understands that no one is clairvoyant and you are not expected to try to find information, you wouldn't just have general access to, obviously actually had a case where we didn't think there was a will, couldn't find one, did the things, couldn't find one. And then six months down the road, we're going through the storage unit. And in the back of the storage, and this was a storage unit where you lift up the gate and it is full. I mean, not a square inch of space in this unit. And it's a six by 10, it's a big, I mean, it's a good size unit. And so they're cleaning stuff out, getting the big items out. And they're going through this little box in the corner has receipts from like 30 years ago to like the grocery store, like nothing to indicate that this is an important box. And in the middle of that box was an original will done in another state from like 1984. And it was the original. And so they called me and we submitted it to the court and said, hey, actually, there is a will now luckily for us, it lined up with what we were already doing. It just said give it to my children and Arizona default was give it to my children. So we were lucky there. But it yeah, it was funny, it was like six months later, we found it. And so we had to, you know, we have a duty of candor and so we gave it to the court. But to be honest, I wonder how much that actually does happen and my clients are already appointed and they don't want to change stuff and they just don't tell me. So I'm not saying that happens, but I would imagine it might happen more than we like to think. Because if they just destroy it and tell no one, that's the downside, Arizona does not have a public registry for you to like put a copy of your will in with like the courts or somebody. That way when you pass, they can go get it. I personally think that that is a disservice. I think we should have some kind of repository here because it's, we have a very high number of aging people. We have people that go back and forth between states. And so I think for us that something, you know, should be looked at because I had a case where we needed to get an Alaska will and Alaska has a repository. So we were able to request it and get the will and do the probate. And so yeah, I think that's something that probably happens more than it should. Well, when the physical document is gone, can lost provisions be proven through the testimony of the attorney who drafted it or the witnesses who sought signed? Unfortunately, that is more of an attorney question. However, I will kind of give you the general consensus of what I've seen happen in other cases where we're relying on testimony from lay witness people or even an attorney. There is not a lot of weight put into it. The court's idea is if I don't have a signed document, I am not entertaining this because unfortunately, there's been a lot of issues in probate court with people coming out of the woodwork and saying, no, I for sure saw this and they didn't. There's just no way to verify the information. And so the court very much airs on the side of caution and says, you know what, I'm really sorry for everybody. I'm sorry that everybody saw this will, I don't even have a copy of it. I have nothing. And so typically we only see the effectiveness of testimony when we have a copy of a will where maybe it's only got one witness or they try to do it themselves and they didn't get it witnessed. And so it's like, hey, this was their intent. They didn't get legal advice. They were trying to DIY it, which I've mentioned many times as usually an issue later. It doesn't hurt you in the moment, but it comes back to get you. So yeah, typically the court is not going to take testimony and say, that's good enough for me. It's just, it's too much of a risk. So what happens when a family finds an old will, but everyone knows a newer one existed, but is now missing, which document does the airs on a probate court prioritize? They are going to act like that new will does not exist. So it is kind of the same thing. They'll say we have a will. It is notarized. It's witnessed. It's original. That's the one we're going off of. If you find the new one, file it. So unfortunately, I've had that happen a lot. I just had that on a matter. The decedent had done a will giving everything to a charity at the time, because he was kind of estranged from his family and whatever. He made amends. And so then he told a family member, hey, we've made amends. I did a new will. I took it away from charity and I'm giving it to you. Great. They contact us. We're looking at stuff. And like I mentioned, we looked all the prudent places, how safe, safety deposit box, everywhere right, could not locate the new will. And so the family member is not in. It's going to the charity. And so unfortunately, if the takeaway on this episode is if you don't have at least a copy of this document and you have nothing like a signed copy, not a word document on a computer. But if you don't have a signed, notarized, you know, something copy to physically give to the court or physically show the court, it doesn't exist. The court's view is I'm not talking about this because it's not real. So similar situation perhaps, but just a little further down the line. What if the will is found after the assets have already been distributed? Can you unscramble the egg in Arizona, probate, or is it just at that point too late? Again, that's going to be more of an attorney question. It really does depend, one, it depends how much does it change it? Is it a percentage change where it's the same people? But maybe someone gets more of a pie rather than an equal split. It depends on what the assets are, you know, was a house sold and converted to cash or did a sibling or a family member like buy out the other ones to take the house. And so there's a lot to unpack there as in that question because unfortunately it really does depend. I would say the answer is maybe we'd have to look at it and see because the other problem you run into is if you have a change and somebody's already spent the money, well, they didn't do it in bad faith. It's not like they stole the money and knew they weren't supposed to spend it. They were told, this is your money. So now we've got to balance how much does it harm the people that have already received and then the people that we're supposed to. So that's really something where if that situation occurred, you would need to really have a consultation with a licensed attorney to flush out the details because the details on that question really, really matter. Is there ever a situation where it's maybe actually better for a client to stop looking for a missing well and proceed under Arizona in test to see laws? We always want to bring forward the decedent's wishes, whether the person I'm representing the client likes it or not. Our office's opinion is you find the will if you can and you probate the will. And if it doesn't say what you like, I'm real sorry. That's unfortunate because it's the person who passed away. It's their things. It's their choice. It's their stuff. If they want to give it all to Joe Schmo, that's their stuff. I'm sorry that you feel entitled or something. As far as proceeding without looking, we do our due diligence. We look in the normal places like I mentioned, but if you don't find anything, you just stop. This is not, you're not supposed to be Nancy Drew Miss Cleo where you're like, oh, I know for sure where it is and I'm just ignoring it. And so I don't really think there's ever a scenario where we would tell someone like, hey, don't look for that like because we, our office has a fiduciary duty to the beneficiaries of the estate. And even though we're representing a client, that does not mean that we get to just be on the client side and that does not mean that we just do whatever they want us to do. We still have to protect the beneficiaries. And I've been in a few scenarios where I've had a client allude that maybe they have found in the state planning document and they're not willing to share it with me. They'll say things like, well, it looks old or I'm missing a page or the signature looks wrong. We tell them you either give me that will or we are not representing you anymore because we are not going to be involved in fraud and deception and all that stuff. So those are tough conversations. I very rarely have had to have them. The attorney has had to have them. I can count on one hand out of my almost, I mean, I'm probably getting, I'm over 500 probates for sure. So I mean, it's a very small amount. But no, the attorney's office is not complicit in concealing documents. If they are, that's a whole other can of worms and episode probably to dig into that. But generally speaking, no, my attorney's not going to risk their law license to help you steal from your relatives of state. It's not worth it. It's no. Go away. Got it. For someone listening who realizes that their parents will is missing right now, what are the first steps they should take to protect their legal standing before calling an attorney? You can have the conversation with your relative parent sibling and say, hey, you know, I've been thinking about my stuff and we just did our trust and well. Have you done that is, you know, is, where is that because mine's here, you know, when the time comes, it's on this shelf in this binder. I have found that if you approach the conversation from I was taking care of stuff for me and it made me think of you rather than going up to somebody and say, where's your will? That's usually not met with a kind or good answer. It's usually like none of your business. Why are you asking about my will? And now we've derailed. So you can lightly kind of touch on the conversation and be like, hey, you know, I just want to make sure when things happen, whomever you've designated knows where stuff is. If it's not me, that's fine. But, you know, have you taken those steps? As far, you know, I've had people contact my office where parents have said, yeah, you're not getting anything. So when stuff happens, don't bother your siblings. At that point, you can reach out to an attorney to talk to them to give you your, basically your rights in that situation. There's many factors that go into that question. So that's something where you're going to need to meet with an attorney and give them kind of the specifics because again, the surrounding circumstances really do matter in that scenario as well. Okay. Well, thank you for all of this valuable information. And that is it for today's episode of probate problems and practical solutions with Carly Whiteside of Copper Wren Law. To learn more about Carly and her team and how they support Arizona families through probate, guardianship and trust administration, visit copperwrenlaw.com. Thanks for listening and remember to like, leave a review, and subscribe to the show so you catch the next episode. Thank you, Carly. Thank you. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments. Thank you.