How to Find a Will before Probate?

There are a number of places where the executor could initially try to find the Will:

Home

Many people simply keep their Will in their home and so this is the best place to start.

It is likely to be kept with their financial records such as bank documents, investment details and insurance certificates. Possible locations include a safe, or drawers and cupboards in their study or bedroom.

The executor should of course ask permission from the deceased’s family before carrying out the search.

Solicitor

If the Will was drawn up by a solicitor, they may have also been asked to store the document by the deceased. Some solicitors, including Wilson Browne, offer this service free of charge when they draft a Will.

As executor you have the right to obtain the Will from a solicitor – they will ask to see a copy of the death certificate and proof of your identity.

Bank

In a similar way to solicitors, the deceased’s bank may have been asked to store the Will. Again you will need the death certificate and ID to obtain it.

If you are unable to find the Will in your initial search, it may be that the document does not exist.

Even if the deceased verbally told you they were making a Will and asked you to act as executor, they may not have actually got round to having a document drawn up.

To find a Will in the UK you could ask for assistance from a specialist business which will search Wills being kept by solicitors and other Will writers. They will search for the Will nationwide but with particular emphasis on the area where the deceased lived.

There may be times when someone other than the executor wishes to see a copy of a Will – for example, if they wish to challenge it in court.

When a person makes a Will, the document remains private for the remainder of their lifetime. A solicitor who assisted in drawing up the Will would keep its contents strictly confidential.

Following the death of the individual and the application for probate by the executor, however, the government will hold a record of the Will and members of the public can apply for their own copy.

You will need to provide the person’s full name, the date of their death and their address. More information on viewing a copy of someone’s Will is available here.

The contents of a Will remain private during the lifetime of the individual.

Following their death, only the executor may obtain the document. Once probate has been applied for, however, the government keeps a record of it which is also available to the public.

While many people who search for the contents of Wills do so because they have concerns over a particular estate, the government’s record of Wills can also be an invaluable source of information for someone researching their family history or a famous historical figure.

It is important to stress that someone should only state things in their Will which they are happy to become public following their death.

There are two ways in which it may be possible to maintain confidentiality over how an estate is to be distributed:

Letters of wishes

In this case the will sets up a discretionary trust and includes a letter to the trustees giving details of the way in which the deceased wishes their estate to be distributed.

Although the Will itself would be available to be viewed by the public, the letter would remain confidential. Anyone considering this should be aware that a letter of wishes, unlike the Will itself, is not strictly legally enforceable and so there is a risk that their assets may not be distributed as they wanted.

Secret trusts

This sees an individual make a bequest to an individual with whom they have reached a prior agreement outside of the Will. Such an agreement could mean that the beneficiary (such as a solicitor) is actually holding the assets in trust for someone else. The terms of this agreement would remain private.

Letters of wishes and secret trusts are specialist areas of law and it is highly recommended that you obtain expert advice if you are considering them as options.

The contents of a Will in the UK remain confidential during the lifetime of the individual.

Following their death, the executor of the Will is entitled to take possession of the document in order to apply for probate and begin the process of distributing the assets among the named beneficiaries.

Once probate has been applied for, however, the document will be stored by the government; the public can view it online or send for a copy by post.

Anybody in possession of a Will in the UK must make it available to the executor following the death of the individual who made the Will.

There have been instances of people deliberately concealing the existence of a Will (for example, because it is in their interests for the rules of intestacy to be applied). In such cases, the person who hid the Will could lose any inheritance they gained through the concealment should the document subsequently be found.

Anyone hiding a Will also runs the risk of being subject to legal proceedings because it could be considered fraud.

If the Will of a deceased person cannot be found it may be that they did not actually draw up a Will or that it has been genuinely mislaid.

In some cases, sadly, the Will may have been deliberately hidden by someone who has a vested interest in it not entering the public domain.

Gaining access to the document in such circumstances may be highly problematic. One option could be to check if there is another copy of the Will – for example, in the deceased’s home or with their solicitor or bank.

Those searching for the Will might also check on the National Will Database to try and confirm if the document was ever drafted as this would add weight to any claim that it is being concealed (registering a Will on the database is not mandatory and so an unsuccessful search does not necessarily mean a Will was not drafted).

Hiding a Will is a serious matter and anyone who suspects that someone has done this is advised to seek expert legal advice as soon as possible.

In cases where an original Will can’t be found, the UK laws of intestacy apply in the same way that they would should the deceased not have made a Will at all.

The rules of intestacy provide a fallback option to disperse an estate in cases where no Will is available.

What are the rules of intestacy in the UK?

If the deceased was married or in a civil partnership, the first £270,000 of the estate goes to their partner. Half of the remaining estate will also be inherited by their partner with the remainder shared by any children.

Depending on family circumstances, other family members may inherit from the estate including grandchildren, great grandchildren, parents, siblings, nieces and nephews.
Should there be no surviving relatives, the entire estate would pass to the Crown.

What are the drawbacks to the rules of intestacy in the UK?

The rules of intestacy operate in a rigid manner and make no allowance for what the deceased’s wishes were believed to have been or how much potential beneficiaries are in need of a bequest.

For example, the rules of intestacy do not allow the deceased’s assets to be inherited by partners outside of marriage or civil partnership, friends, carers or charities.

This underlines the importance of an individual making a Will as it is the most effective way of ensuring that their estate is distributed according to their wishes.

More than two-thirds of people who pass away in the UK have not drawn up a Will. This results in a risk that their assets will not be distributed in the way they would have wished and that their loved ones may suffer emotional and financial strain at what is already a very difficult time.

For people who seek to avoid this scenario by leaving a Will, it is essential they ensure it can be located quickly after their death to ensure probate can proceed smoothly.

In cases where a Will cannot be found the estate will be divided up in the same way as if the document had never been drafted. Here is some advice on how to prevent this from happening.

Keep the executor informed

The executor could be a friend or relative (even if they are beneficiaries of the Will) or a solicitor. Whoever is chosen it is essential that the individual whose Will it is provides clear details to the executor over where the Will is located. They should also inform the executor of when the Will was drawn up to ensure that the most up-to-date document is used for probate.

The executor should be told immediately if the location of the Will changes or if a new document is written.

Have the document stored by your solicitor

Wilson Browne is delighted to offer a free Will storage service to clients who have asked us to draw up their Wills. This offers a number of benefits:

• The document will be stored safely with no opportunity for concealment or other fraud.
• It will remain confidential during the lifetime of the individual.
• Our service also includes free Will health checks at regular intervals to ensure the document still reflects your wishes as family circumstances change.
• Following your death, the Will can be obtained speedily by the executor without the stress of having to search for the document. There is no obligation for you to appoint a Wilson Browne solicitor, although of course we would be very happy to carry out the role.

Wilson Browne’s team of dedicated Wills & Trusts solicitors have a wealth of experience in helping people with all issues concerning Wills.

We combine our expert legal knowledge with empathy and understanding to offer advice and guidance on such a sensitive subject.