What happens if I can’t find a deceased’s Will?

Where should I start?

A search through the deceased’s personal papers is often the first step. In addition to the Will itself, you should look for any paperwork that may show who prepared the Will or where you could find it. For example, there may be letters from a solicitor discussing a Will.

It is common for solicitors to store Wills on behalf of their clients, so you should contact the person who made the Will and ask for further information. Even if they do not hold the original document, they may be able to confirm whether the deceased was storing it themselves or if it has been released to another firm of solicitors (perhaps when the deceased updated it).

You can also search the National Will Register, which is an online directory of Wills prepared in the UK. A search of their records is not conclusive as it will only show Wills which have been registered with them, but it will assist in identifying when a Will exists that has been registered, and it will tell you where it is likely to be located.

Once you have exhausted all the options and believe the Will is missing or has been lost, the next steps will depend on when the Will was last seen.

The presumption that the Will has been destroyed

If the deceased is known to have had the Will in their possession before their death, there is a presumption that they destroyed their Will in their lifetime with the intention of revoking it so that it would not take effect after their death.

In this case, the deceased will be treated as having died without a Will. A set of rules, known as the rules of intestacy, will apply, setting out who should receive the deceased’s assets. These rules can be complex and are beyond the scope of this blog, but we have previously posted blogs that go into this in further detail. You can read both Part 1 and Part 2 of our ‘understanding intestacy’ articles for more information.

The presumption that the deceased intentionally destroyed the Will can be rebutted, but to do so the court must be satisfied that that the Will was still in existence after their death. For example, evidence that the Will was accidentally destroyed (i.e. by fire or flood) or from someone who is able to confirm that they saw the Will after death might rebut this presumption. Evidence such as photographs or letters are useful in supporting an application.

If the court is satisfied that the deceased did not intentionally destroy the Will, it may be possible to rely on a copy or draft document in place of the missing original.

Conclusion

Dealing with an estate where the deceased’s Will is lost or missing is not straightforward. The procedure varies depending on the circumstances, so it is important to seek advice. If you are having difficulty finding a deceased’s Will, our team of experts are able to advise. We can help you understand what to do next and, if applicable, assist you in applying for the Grant of Probate.