We are often asked how to locate a Will. This question usually comes from the Testator (the person who has made the Will) or the family trying to sort out the estate.
Here I have listed a few possible scenarios.
This is dependent on who you instructed to make the Will. If you made the Will with a Solicitor’s firm, then they are regulated by the Solicitors Regulation Authority (SRA), which means that if the firm ceased business, the SRA will have details of where the Will passed to, whether it be a firm that continued the practice or the SRA who took control of client documents. We can assist with making enquiries at the SRA.
If you instructed a Will Writer to make the Will, then the situation is different. Will Writers are not regulated, so there is no actual requirement for them to keep records or even keep your Will. This is a risk with some Will Writers, as there are some Will Writers that do not understand the importance of a Will or the need to keep accurate records and files. If the Will Writer was a member of the Society of Will Writers, which is just a voluntary membership, we would start there in the hope that they may be able to give some advice.
When making a Will we would always advise that you use a Solicitor or at least a STEP accredited Will Writer.
The first place to start to look is through your family member’s papers. It is highly likely that they will have a copy of the Will at home. This should provide you with the name of the firm that completed the Will and therefore where the Will may be stored.
If you cannot locate such information, then make enquiries of local Solicitors. Although the Solicitor will not be able to give you details of the Will, they can advise if they are storing the Will for your deceased relative and can provide it to you, if you are the Executor and have the Death Certificate along with identification for yourself.
You can also contact Certainty; this is a company that offers a Will Search service for a fee. This is not an exhaustive search, as it only searches member firms. You could also contact the Probate Registry to see if they hold the Will.
We can help with searching for a Will.
A family member has dementia and no longer has capacity and we need a copy of the Will
To search for the Will, it is the same method as above. If you know the location of the Will then you can make enquiries. Unfortunately, due to data protection, you need to have the requisite authority to obtain a copy. This can be in the form of a Power of Attorney, if the person made one prior to losing capacity. Or it could be a Court Order from the Court of Protection. If you do not have either of these, or the person has not left direct instructions that you could obtain a copy with the holder of the Will, I am afraid you would be unable to have it. You would need to seek relevant authority from the Court of Protection.
We can help with Court of Protection applications.
A Solicitor is holding my family member’s Will, do they have to administer the Estate?
In short, No.
However, if your family member appointed the Solicitor as the Executor of the Will, then they will have to administer the estate, unless they agree to renounce.
If they are not appointed as Executor or if they renounce, you can use any solicitor you choose to administer the estate, or you can even administer it yourself if you feel confident and competent enough to do this.
We are often instructed by Executors to administer an estate where the Will is held by a different Solicitor. In these situations, we take instructions and then liaise directly with the Solicitor to obtain the Original Will so that our clients do not need to approach the Solicitor themselves. We can often organise the transfer of the Will.
What happens if a Will cannot be found?
It depends on the individual circumstances. In some instances, we can prove a copy Will at the Probate registry, if there is one and we can prove that the Testator (the one who made the Will) did not intend to revoke it. For example, it was lost in the post.
If we cannot locate a Will or a copy and/or cannot prove that the testator did not intend to revoke it, then the estate will be administered as per the Intestacy rules. These are legal rules that state who is to inherit.
We can help with probate and estate administration including intestate estates where a Will has not been left. (Letters of Administration).
If you have any questions or queries then please do not hesitate to contact us.
Fully Accredited Member of the Society of Trust & Estate Practitioners (STEP) and Solicitors for the Elderly