What do I do if I can’t find the will?
When someone passes away, the first step to probate is getting the will and determining who is the executor named in the will. The will determines who is in charge of the estate and who gets what is left at the end of the probate process.
But what happens if there is no will? If your loved one did not draft a will, or if the will was destroyed or lost, how do you probate? In this situation, the estate can still be opened under the “intestacy” statute. Pennsylvania has an “intestate succession” statute that governs who makes decision in the estate and who will inherit when there is no will. Here are a few tips to keep in mind.
An administrator, not an executor
In a typical estate, the executor or executrix is in charge. The executor is the person named in the will. When there is no will, the law provides that the next of kin is the administrator or administratrix. There is no difference in the powers given to an executor versus an administrator under the law. It’s simply a difference in terminology.
In this case, the administrator will go down to the Register of Wills in the County where the deceased person lived when they died and open an estate, or “probate” the will.
Beneficiaries are the next of kin
The beneficiaries of someone who passes intestate are the next of kin. A statute governs the general way of dividing the assets, and it differs based on whether the individual who dies was married and whether the widow or widower had children with them or from separate relationships.
Was there no will, or was the will destroyed or lost?
Finally, your administrator’s approach to the estate may be different based on if the will was lost or destroyed, or if there never was a will. In most cases, the absence of a will is not catastrophic—you simply open the estate without it. But what if someone intentionally destroyed the decedent’s will before or after they died? What if it was lost unintentionally?
These questions give rise to thorny legal problems, and if this is your case, you should certainly involve an attorney. A beneficiary—or someone who was not a beneficiary—who destroys a will may face legal consequences, and if the will can be reconstructed from copies or someone’s memory, there may be a way to use the will to govern the estate even if it was destroyed.
A lost will is harder, of course. The presumption under Pennsylvania law is that the lost will was intentionally destroyed by the testator—that is, your loved one who made the will. But this presumption can be overcome. Once again, if it was lost, there may still be a way to “reconstruct” the will for probate.
Conclusion: Call an estate administration attorney
If someone you love has passed away, having an estate administration attorney to help you through the process is crucial. Not every estate should go through probate, and those that do require careful management. Our Pennsylvania estate administration attorneys can help you figure out each step in the process and determine what is best for your family.