Lost Wills: What are the consequences and what can be done?

Released On 4th Jun 2024

Inevitably, the process of administering a person’s estate starts very soon after their death. One of the first steps in that process is finding the Deceased’s Will. Unfortunately, sometimes the Will cannot be found. This article aims to give some guidance on what the consequences may be and what can be done.

Finding The Will

The original of the Deceased’s Will should always be relied upon and submitted to the Court with an application for a Grant of Probate, if possible. If it is not possible to do that because the Will has been lost, there are steps (beyond searching the Deceased’s home) that can be taken to try and find it.

The steps which can be taken include:

1.Contacting the Deceased’s solicitors to ask if they hold a copy of the Will. Please note, if you are not named in the Will as the Deceased’s executor, the Deceased’s solicitors will not release a copy of the Will to you and may not tell you if you are named as a beneficiary.

2. If the firm of solicitors you believe might hold the Will confirm that they do not in fact hold it, or the firm which you believe held it has closed, you may want to contact other firms in the area to see if they hold a copy (it may be that the Deceased used a different firm when writing his/her Will, or that the closed firm was bought up by one of its competitors). Again, if you are not named as an executor, the firm which holds the Will may not give you any information beyond confirming that they hold the Will.

In the case of a firm which has closed down, the Solicitors Regulation Authority and The Law Society may be able to provide you with information about what happened and which firm took on the closed firm’s practice.

3. Contact The National Will Register (also known as ‘Certainty Will Search’) to see if the Deceased’s Will was placed on the register. Registering a Will is an entirely voluntary process, so there is no guarantee that the Will will have been registered. If the Will was registered, a copy will be released to the executors.

4. Place an advert in The London Gazette, the official publication in which legal notices relating to estates are placed, stating that the Deceased has died and that the firm which holds the Will should provide a copy of it to the executors (you will need to include your contact details or the contact details of your solicitors in the advert, so that you can be contacted in the event you are the executor).

If the Deceased made their Will through a Will writing service or through an online Will writer or firm of solicitors, placing an advert in the Gazette may be the only way of bringing the Deceased’s death to the attention of whoever has the Will.

Please note, there will likely be a charge for placing an advert in the Gazette and there is no guarantee that the notice will be seen by the person for whom it is intended. However, the costs of placing an advert may well be worth bearing in the context of the value of the Deceased’s estate.

If the Will still cannot be found after taking the above steps, it may be that it has been lost forever.

Proving a Copy Will

If the original Will cannot be found but you have a copy of the signed Will, you can apply for a Grant of Probate in relation to the copy, i.e. you can ask the Court to declare that the copy effectively is the Deceased’s Will. If a Grant is made in respect of the copy, the estate must be distributed in accordance with its terms.

Proving a Draft Will

If neither the original nor a copy of the signed Will can be found, it is possible to have a draft Will admitted to probate, provided you have strong evidence (such as an email or letter written by the Deceased to his/her solicitors) that the Deceased approved the terms of the draft Will.

However, whilst it is possible for an approved draft Will to be admitted to probate, the making of a Grant in respect of the draft is open to challenge, since it may be argued that the Deceased might ultimately have decided not to make their Will in the terms set out in the approved draft. Consequently, where third parties would receive a greater share of the estate under an intestacy than under the terms of the approved draft, the greater the chances of a dispute about whether the draft should be admitted to probate.

Intestacy

Where someone dies without making a Will, or where the Will, a copy of the signed Will or an approved draft cannot be found, they are deemed to have died intestate.

The law on how the estates of intestate persons must be administered and distributed is governed by the Intestacy Rules.

In brief, where a person dies intestate, no one has the right to deal with their estate until such time as a Grant of Letters of Administration is obtained.

Furthermore, the Intestacy Rules set down a hierarchy of the people entitled to apply to the Court for a Grant of Letters of Administration: surviving spouses have priority, if the Deceased was not survived by a spouse (or the surviving spouse renounces their right to administer the estate), their children are next in line, then the Deceased’s parents. Other relatives rank lower down after the Deceased’s parents.

As to how the estate is divided, where the Deceased is survived by their spouse but no children or other descendants, the surviving spouse inherits all of the estate.

If the Deceased is survived by their spouse and children (or other descendants), the surviving spouse receives:

1. all the Deceased’s personal possessions;
2. a legacy of £322,000 (if the Deceased’s estate comes to less than £322,000, the surviving spouse receives all of the estate); and
3. half of any further assets over and above the legacy of £322,000 (the Deceased’s children (or other descendants) receive the other half of the Deceased’s remaining assets).

If the Deceased is not survived by any relatives, their estate passes to the Crown.

Conclusion

Prevention is better than cure, and to avoid the costs and consequences of your Will going missing, it is best to:

1. have a Will drafted by a solicitor;
2. appoint your solicitors and a trusted relative or friend as your executors;
3. have your Will stored by your solicitor;
4. have your solicitor register your Will on The National Will Register; and
5. tell the trusted relative or friend that you have appointed them as your executor and that the original Will is stored with your solicitors, and provide them with a copy of the Will.

Read more here