Losing a loved one is difficult enough, but not being able to wrap up their affairs because of challenges and obstacles encountered during the probate process can add additional frustration to the grieving process. There is, perhaps, no greater challenge or obstacle to the probate process than not being able to locate your loved one’s will and/or other estate planning process. Because a will not only sets forth how your deceased loved one would like for his or her property to be distributed and affairs settled, but also (generally speaking) who your deceased loved one trusts to accomplish these tasks, losing your loved one’s will can lead to serious legal ramifications.
Where to Start Looking for Your Loved One’s Will
Ideally, when your loved one created his or her most recent will, he or she would have spoken with someone about where your loved one intended to keep the original will. Some individuals ask their attorney to keep the original will with the attorney’s other important client files; others may choose to leave the will with the person they have chosen to administer their estate upon their death. Still others may choose to keep the original will in their own possession and with their other important documents. You may start your search by asking the decedent’s lawyer (if known) or the decedent’s immediate surviving friends or family members if they remember the decedent ever mentioning where his or her will would be located. Be sure to check in any safety deposit boxes the decedent may have had with his or her bank.
I Still Can’t Find the Decedent’s Will – What Now?
If a diligent search still doesn’t lead to the discovery of the will’s whereabouts, you may still be able to have the original will “admitted” under Ohio Revised Code 2107.26. This statute applies not only to original wills that have been lost but also those which have been destroyed or “spoliated” – stolen, for example – after the decedent’s death. Under this statute, a probate court can still “admit” such a will if two conditions have been met:
- First, a proponent (that is, the person seeking to have the court recognize and admit the lost original will of the decedent) must establish by clear and convincing evidencethat the decedent had executed a will in accordance with all requisite legal formalities and what the contents of that will were. Depending on the specific situation, you may be able to do this by having the witnesses who observed the testator create and sign his or her will testify in court. Not only this, but:
- Second, anyone who is opposing the admission of the lost original will must not show by a preponderance of the evidence(a lower legal standard than “clear and convincing evidence”) that the testator had revoked the lost original will.
So, for example, if your loved one’s original will is lost, you may be able to present a copy of the will along with testimony of witnesses who are able to convince the court – who are able to make it “clear and convincing” – that your loved one didexecute a will, the will was valid, and the contents of the will were identical to those in the copy. So long as no other person has evidence or witnesses to suggest your loved one revoked that will before his or her death, the court should permit the lost original will to be “admitted.”
Dawes Legal, LLC is at Your Service
If you are needing assistance in navigating Ohio’s sometimes-challenging probate process, give Dawes Legal, LLC a call at (614) 733-9999. We have experience in successfully overcoming many probate-related challenges and difficulties, and would be happy to help you in administering your loved one’s estate.