Who Gets a Copy of the Will After a Death?

Who Keeps Original Copy Of a Will?

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Safe Keeping of The Will and Maintaining Custody of the Ordinal Will.

Custody Of Your Original Will Is Very Important.

Who Gets a Copy of the Will After a Death?

After executing a Will, clients face the question of what to do with their original Wills. Contrary to scenes you might have seen enacted on television or in the movies, there’s no such thing as a “reading of a will.” There’s no legal requirement that a last will and testament must be read aloud to anyone. The Executor or personal representative of the estate determines who is entitled to receive a copy and who should be sent a copy even if state law doesn’t require it.

Two people going of legal documents and signing a will.

When someone dies in California, the Court will be interested in seeing their original Will, as it is challenging to probate a photocopy. This is why the client must retain custody or knowledge of what happens to their original Will once they sign it. It doesn’t always happen that family members can immediately locate a decedent’s last Will and testament, yet everything begins with this document. Logical places include safe deposit boxes, and anywhere the decedent was fond of filing away personal papers. The decedent’s lawyer might have kept a copy if he had drafted the document. If you don’t know who that lawyer is, consider placing a notice in the local newspaper.

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There are four standard choices that a client has for Storage of a Will:

1: The client holds onto their own original Will. What’s the benefit of doing this? You always know where it is. If you keep it among your important papers, their Executor will likely know where to find the original Will when the client dies. 

There is a downside to doing this, however. Suppose a client retains their original Will, but nobody can locate it upon their death. In that case, there is a rebuttable presumption under California State law that the client revoked the Will by destroying the original. If the Executor cannot find the Will, the Court asks the Executor to “prove a negative”—that something did not happen—which is very difficult to do.

Maybe a client has lost their Will, or it’s been kept in the basement, and a flood destroyed it. Sometimes that is an acceptable answer to the Court. However, it’s often challenging to satisfy the Court that something did not happen, and the Court will refuse to admit the Will to probate if you cannot locate the original. This may mean that the client’s preferred beneficiaries will receive nothing.

Therefore, if the client keeps the original Will, it’s essential to know where it is, and even more critical for the Executor to know where the original Will is. They will need to lay their hands upon it to offer it for probate.

2. Client gives it to somebody else. Giving it to somebody else is a fantastic option. Once the original Will is out of the client’s custody, there is no such presumption of revocation if the original Will cannot be found. It’s significantly easier to probate a photocopy of the document.

The Executor selected in the Will is the most likely person to hold the document. For example, a client names her adult daughter as her Will’s Executor. The client gives her adult daughter the original Will and tells her that she will need to bring this to the probate court upon her death. If the daughter loses the Will, either just by misplacing it, or even if there’s some flood or fire in her home that destroys it, there is no such presumption that mom revoked it, and the Court will readily probate a photocopy of the document.

Why might it be inappropriate to leave your original Will with your Executor or anyone else? First, the client may not want the Executor to know the contents of the Will. If the client doesn’t want anyone to learn about their estate plan before they die, giving a copy of your Will to a third party can undercut that intent. Another common problem is that the client may live with their chosen Executor. 

For example: if I write a Will and name my spouse as the Executor and if that spouse resides with me, the problem is that the Will is in my home, and the presumption of revocation I described above may apply under these circumstances.

3. Client leaves the original Will with the attorney who drafted it. What are the pros and cons of this choice? The advantages of doing this include that you never have to wonder: “Where is my Will?” You know that your attorney has the original Will and most attorneys—myself included—keep client Wills in a safe deposit box or some fire-proof vault. Likewise, most attorneys—myself included—will give the client several xerox copies or a PDF, all of which are stamped with the location of the original Will and the attorney’s contact information, so that other people interested, such as the Executor, know where to find the original Will.

What’s the downside of leaving it with your attorney? Attorneys have a financial interest in holding on to original Wills. Why? We know that Executors need to come and see us after the client’s death to retrieve the original Will to offer it for probate. That makes it exponentially more likely that the nominated Executor will retain the lawyer who wrote the Will to provide the Will for probate, which means that the attorney will make more legal fees. This is something that I always discuss with my clients when they ask if I’m willing to hold the original Will.

They often tell me that they’ve chosen me as their lawyer because they like my style, professionalism, and knowledge—and they would want nothing more than for their Executors to work with me for a smooth transition of their assets. However, that is a personal decision for the client to make, and I certainly do not take offense if they want something else to happen to their original Will.

In conclusion, clients must keep track of custody of their original Wills. If they’re going to retain it themselves, they need to keep it in a very safe place and ensure that their Executors know where it is located. If they’re going to give it to someone else, the client must be comfortable doing so for the reasons I’ve outlined above.

Wills Are Public Record

Remember that a will becomes a public record for anyone to see and read when filed for probate with the state court. The beneficiaries of the Will can request that the probate judge seal the court records to prevent the general public from viewing them under certain circumstances.