Trust & Estates: Do You Know Where Your Original Will Is?

12.01.10

So you've made an estate plan, and your attorney has given you your original signed Will. What should you do with it?

There was a time when many attorneys retained original Wills for their clients, but in recent years this practice has declined. If a client moves or changes attorneys or wishes to destroy a Will and make a new one, leaving an original Will in the care of the drafting attorney is inconvenient and impractical. Furthermore, for liability reasons, many attorneys will refuse to act as custodian of their clients' original Wills.

Likewise, most attorneys will have clients execute only one original Will, not several originals. The existence of only one original avoids confusion in the event the client wishes to destroy the Will and make a new one. Most attorneys will retain a photocopy of the executed Will, for a time, but not a duplicate original.

So what happens if the original is lost? In Oklahoma, if a Will was last known to be in the possession of its maker and it cannot be found at the time of death, it is presumed to have been destroyed by the maker with the intention to revoke. This presumption makes admitting a lost Will to probate (getting it accepted by the court) very difficult. The difficulties exist even if there are plenty of photocopies of the original Will available; it's the original that matters.

If the Will is missing at the time of the maker's death, the proponents of the Will have to prove (1) that the Will was executed, (2) that the Will still existed at the time of the maker's death, and (3) the contents of the Will. The contents have to be testified to by at least two witnesses, even if there is a photocopy available. Finding two witnesses who were familiar enough with the contents of the Will to testify about them is particularly difficult if only the attorney who prepared the Will is familiar with its terms and sometimes proves impossible if the attorney who prepared the Will is unavailable to testify. Because of the difficulty of overcoming the presumption of destruction, a lost Will cannot be probated at all, and the maker's estate will have to be administered as if that Will had never been made.

Because of the difficulty of probating a lost Will, it is essential that your original Will be kept in a safe and secure (preferably fireproof) location. It is also important to inform at least the personal representative appointed in the Will, the successor personal representative and perhaps a trusted counselor or beneficiary of the location of the Will, as well. Small fireproof safe boxes are widely available and are perfect storage places for an original Will, as long as your personal representative knows the location of the box and has a key or combination. Bank safe deposit boxes are also good, safe places to store a Will, and banks will allow access to safe deposit boxes to look for a Will to the spouse, parent, adult descendant, or person named as executor in a copy of a Will. See 6 O.S. § 1308.

Wherever you decide to store your Will, just make sure that you inform your personal representative and at least one other of the location, to avoid the risk that the Will might be lost.

Kassandra M. Bentley
(918)591-5259
kbentley@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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