My Dad Is Dying How Do I Get A Will?
Wills are important documents and there are situations in which you will need to get a copy of last will and testament. How to obtain a copy of a will depends on the legal status of the will, as well as its location.
A Living Person’s Will
If you are wondering how to get a copy of a will for a person who is still alive, the only way to do so is to ask the person who wrote the will (testator). A will is a private document and no one can be forced to show their will, but the testator can share copies with anyone he wishes. The testator may have the will at home, at his attorney’s office, or filed with the probate court for safekeeping where it is not available for viewing.
Finding the Deceased’s Will
How to find a copy of a will is an important issue. If someone in your family dies and there is no will on file with the probate court or with his attorney, you should check the home safe, safe deposit box, files, and any hiding or storage place where the deceased kept important documents. Your family member might have seen an attorney you don’t know about, so keep an eye out for business cards or letterhead from law offices and call to check with those offices.
Obtaining a Will from Probate Court
If you are wondering where I can get a copy of a will of a deceased person, there is a procedure to follow. Once the testator has died, if that will has been filed with the probate court of the county the deceased resided in, the court will open the will and it becomes public record. The best way to view the will is to get the probate court file number. The executor can give you this information. You may be also able to access the file number by phone, online, or in person at the courthouse by providing the deceased’s name and date of death. Some courts don’t even need the date of death and have an online docket you can search by name. Go to the courthouse with the file number and ask a court clerk to see the file. Getting a copy of a will is possible by paying a copying fee. Some courts will also provide you with a copy by fax or mail of a will on file. A certified copy of will is a document that has been stamped and certified by the court to be an exact copy of the official document. It may be necessary to search through the court archives for a copy of will from many years ago. The clerk will tell you how to do this. The will might be on microfilm or in digital format for viewing. You can obtain copies from the clerk.
An Unfiled Will
If the testator is deceased but the will you are looking for has not been probated, it is not public record yet. However, you may still be allowed access. Who can get a copy of a will? If you are a named beneficiary in the will or a guardian of a minor child who is a beneficiary, you are likely permitted access to it by your state’s laws. You should contact the executor to ask to see it. If you don’t know who the executor is, obtain a copy of the death certificate through the county. The name of the executor is listed on that. But what if you don’t know if you are a beneficiary? You can seek action through your probate court to force the person holding the will to file it for probate. Your state may have a law making it a crime not to file a will.
Validity of Will Copies
The rule of thumb is only the original copy of a will is valid. The original is what must be filed with the court. Most people make copies of their will though. A copy of a will may be admissible in court if the original has been destroyed by a fire or flood or if the original has been unintentionally lost by the testator. If the original will was purposely destroyed or thrown out by the testator because he or she wanted to revoke that will, the copy is not valid. A certified copy is useful for filing other legal papers (such as to transfer title of assets). Locating a will can take some digging, but with diligence and careful research you should be able to obtain a copy of the will you are looking for. As soon as your father died, his property became his probate estate. If he left a will, his property will probably be distributed according to its terms by the probate court. You must complete certain steps to get the probate process started. Although all states apply the same basic principles, the specifics of the probate laws of individual states often differ.
A valid will is necessary to distribute estate assets in accordance with your father’s wishes. It should be printed and signed by your father or by someone authorized to sign on your father’s behalf. Some states accept handwritten wills but not all so know your state’s restrictions. Many states require at least two witnesses to sign the will as well. The will must contain original signatures in other words; it can’t be a photocopy of the will your father actually signed. If your father’s will doesn’t appear to meet these requirements, search his belongings to see if he executed another will that does meet these requirements.
The probate process is initiated when someone, whether or not the estate executor, delivers a copy of the will and a certified copy of your father’s death certificate to the clerk of the county probate court along with an application for probate. The county coroner or the mortuary where your father’s body was taken prior to the funeral should have access to a copy of the death certificate; the clerk of the county probate court should have access to applications for probate. Alternatively, you might be able to download an application for probate from the county probate court’s website. The application for probate will probably request only basic information such as your father’s name and the name of the estate executor he appointed. Once you have delivered these documents to the probate court clerk, the court will set a hearing date and notify the executor. The executor and the probate court handle all further probate administration. If you are not the executor, you will have no further duties.
At the hearing, you will have to present the original will, not a photocopy, to the probate judge. The judge will examine it to determine if it appears to be valid. If the will is not obviously invalid, he will issue an order admitting it to probate. He will also formally appoint the estate executor. In almost all cases, the judge will appoint the executor named in the will. The judge will then issue documents to the executor that establish his authority to perform duties such as withdrawing money from your father’s bank account or selling estate assets. He may authorize the executor to distribute a stipend to your father’s dependents to cover their living expenses during the probate process. Finally, the judge will set another hearing date.
The executor must catalog all estate property. He must pay off all of your father’s creditors before distributing any property to heirs, even if this means selling estate assets to raise cash to pay debts. He must also collect any money owed to the estate such as your father’s last paycheck or a tax refund. The court will set a waiting period during which a hearing will be held to allow estate creditors or heirs to challenge the distribution of property under the will and to allow interested parties such as would be heirs to contest the validity of the will. If the will is fiercely contested, several hearing may be necessary. After the waiting period expires, the probate court makes a final determination as to how estate property is to be distributed and to allow the executor to distribute it.
Mom or dad has passed away and despite your requests over the last few years for them to see a lawyer and do a will, they never did. What do you do now?
• Make a diligent search for a will: Look through your parent’s records and file cabinets, talk to their close friends and other relatives, and ask their accountant and any lawyer they worked with in the past. Look around the house for business cards of lawyers, accountants or financial advisors. They may have gone to a lawyer and not told you about the appointment Wills are not like cartons of milk; they don’t have expiration dates. If you have found an “old will” and it was not revoked by your parent it is the will that will be probated.
• Check to see if mom or dad had a safe deposit box: The will may be in the safe deposit box. This poses a particular challenge because the authority to get into the safe deposit box may be in the box. If you are fortunate, mom or dad will have named you as a signatory on the box and you will be able to access it. If not, you will have to adhere to your state’s laws in order to gain access to the box. Some states allow you to bring a special petition to gain access to the box. Other states will require a full probate petition in order to gain access.
• Gather a list of your parent’s assets, financial statements and tax returns: It is particularly helpful to have financial statements covering the date of death. If mom died on March 19, you should gather up all of the financial statements that cover the entire month of March. Date of death values of assets will be needed for probate and estate tax returns. Financial statements will often indicate ownership of the account. If there was a joint owner of the account, the ownership will most likely pass to the surviving joint owner and probate of that asset may not be needed. The same is true if the account had a “POD” – Payable on Death – listed. The asset gets paid on death to that named person listed and avoids probate.
• Make an appointment with a lawyer: This can be your parent’s lawyer, your lawyer or a new lawyer you have been referred to by a trusted advisor. Just because dad used his old college buddy for his legal needs does not mean that you have to use that same lawyer to administer his estate. If you are the person in charge of dealing with the estate, you can hire whatever attorney you like to advise you. I caution you not to use the lawyer who helped with the purchase of your home or handled your best friend’s divorce to assist with the estate. Hire someone who has experience with trusts and estates law. You wouldn’t go to a dermatologist to perform your heart surgery. Likewise, you should not hire a real estate lawyer to administer your mother’s estate. The lawyer will review the information you have gathered and will advise you what next steps are needed. At this stage, a lawyer is generally looking to see if probate will be necessary.
If all of the assets were owned jointly with a surviving joint owner or had a named beneficiary, there may be no need to probate. In most states, the ownership passes by operation of law to the surviving joint owner or the named beneficiary. This is often the case with life insurance, IRA’s and 401K’s. If, however, there is an asset in mom’s name alone, such as a home or a bank account, probate will be needed for that asset. Since there is no will, you will need to bring a petition under the laws of the state where mom died (or where she owned assets) asking the court to appoint you as Personal Representative (or Administrator) of the estate. This is called an intestate estate, which means mom or dad died without a will. The beneficiaries will then be determined by state law, which dictates who inherits the money. Of course, most of this can be avoided if your parent creates an estate plan, including a will, before they die. Unfortunately, just like we didn’t always listen to their advice when we were growing up, they often do not listen to ours.
When you need a will, trust or probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506