If you’re one of the 50% of U.S. adults who don’t have your will completed, this month’s Ask GYST is for you: “What happens when you can’t find a will?” What do you do – and what shouldn’t you do?
What happens in the first days and weeks after someone dies is often such an overwhelming swirl, it’s hard to just get through the day. Then, close friends and family are often flooded by hundreds of decisions and questions. One of those big gut-punchers can be, did they have a will and what about probate?
Recently, I received an email with an all-to-familiar question about what to do after their friend’s unexpected death as they have not been able to locate a will. They knew their friend had been working on getting their will together and were hoping to find out if she had created a document progress via GYST or had shared a copy or details with me.
To make it feel even more frustrating, they hadn’t been able to access their friend’s computer or phone and weren’t sure where to begin looking. I unfortunately didn’t have any information or a copy of the will but wanted to share some ideas on where they can look, what to keep in mind while they are searching – and a few things they might need to wait on.
Our dear friend recently passed unexpectedly and we cannot find any will information. We also cannot get into her computer or phone at this point. We do know that she told us about your website and that she had been working on getting a will together. Is there any way we can access [files] to see if she had indeed begun working on her will? Do you need a death certificate…?”Friend of GYST Reader
I quickly felt that same punch-and-panic in my chest remembering when I was in a similar position over a dozen years ago. According to a study conducted by the National Bureau of Economic Research, only 42% of Americans have a will, and even fewer have a plan for their digital assets. So many of us are in the same boat and don’t realize what a terribly vulnerable position this can put us in.
Before You Begin: Searching for a will or other legal documents often means searching files, boxes, cabinets or storage containers looking through what can be some very personal and sensitive items inside someone’s home.
There is a delicate balance to the very practical need and urgency we feel about finding a will while also holding the emotional significance of this task with an immense amount of sensitivity, care and confidentiality. Make sure you (or anyone) has permission before looking through or removing any personal items or disturbing how they may have left them.
In most situations the partner, spouse or close family members of your friend will appreciate the help but should also have a conversation and give permission before anyone starts looking through (or making claims to) anyone’s personal items.
Because I haven’t figured out how to make a time-machine so no one has to go through this situation ever again, here are some “now what?” steps you can try if you find yourself scrambling to find legal documents like a will:
Search for the original, signed will. If they completed a will and executed it (signed in front of two witnesses) so it is legally binding, either with an attorney or using an online template, they almost certainly have a physical copy of their will somewhere. Most commonly, in their home, often there is a ‘back-up’ copy in a second location and frequently another copy is shared with the executor of the will and any other people named for important roles like Power of Attorney or Guardians of children or pets.
Here are some common places legal documents are stored.
- Estate Planning Attorney – If someone worked with an attorney to create their will, often the attorney will offer to keep the original, signed document on file and provide a few copies to keep and share.
- Do they have an attorney or have worked with a legal firm in the past? Would their employer have offered legal services as a benefit?
- File with ‘Important Documents’ – Legal documents are often stored near financial records, tax filings, insurance or health records or IDs and passports but where those files are is not always obvious or clearly organized.
- Documents can be found easily in a file cabinet in a home office, basement or garage but they can also be ‘safely stored’ in a storage container or cardboard box under a bed, in a closet, attic or next to the cookbooks in the kitchen. Sometimes the ‘files’ can look more like ‘piles’ and you may need to get creative about where you look.
- ‘When I Die’ folder or binder – For those who have completed some end-of-life planning there may be a binder or folder with medical directives or other instructions that could be on a bookshelf, office desk or other ‘hiding in plain sight’ location around the home.
- Safe or Safety deposit boxes – While not everyone has a safe at home hiding behind a painting on the wall, smaller safes or fireproof file boxes or containers are easy, more affordable ways to keep documents and important items private or protected at home. Similarly, if someone has a safety deposit box at their bank or their family has kept one over the years, it is very likely you’ll find legal documents like a will inside.
- Contact the bank(s) where someone had an account and ask if there is a safety deposit box registered in their name or a family members on file.
- Ask friends and relatives. Reach out to close friends and family and ask if they have a copy of a will or any information that could help.
- Public records. Filing a will once it has been completed with your local/county probate court is often discussed as a safe and secure place to make sure your will can be easily found. According to Legal Zoom, “Many states have a system that allows you to file your will with the probate court for safekeeping. If your state allows this, this is the safest place to store your will.”
What else? If you are unable to locate a physical copy of the will, it’s possible that your friend created a digital copy of her will. If she shared her passwords with trusted individuals or used a password manager, you may be able to gain access to her computer or phone to search for any relevant documents. Additionally, if she emailed any relevant documents to herself or others, you may be able to find them in her email account.
Look for digital copies of a will. Sometimes having the password to open a computer, laptop or phone is the first, big hurdle to gain access to begin your search. If you can’t get into the computer or a device, perhaps they used a password manager, saved passwords to their internet browser or shared their passwords with someone. You may be able to gain access to their some of their online accounts and search for documents or files saved in cloud storage, for example google drive, dropbox or a paid online digital storage subscription
- If you are able to access their computer or phone you can search for any relevant documents or email correspondence that might point to a specific attorney, legal firm or an online legal template they may have purchased.
- If you cannot gain access to a computer or phone, you may be able to access an email account via a browser and search for relevant documents or attachments. Searching for keywords may help locate important files more quickly:
- Confirmation, statement, invoice, signature, notary, final documents, receipt, etc.
Seek legal advice. It may be incredibly helpful to consult with a lawyer or financial advisor for advice or support to guide you through the process. Even with a will, the legal and financial tasks after someone dies can quickly become overwhelming. According to a survey conducted by Nolo, the average cost of probate court fees and attorney fees can range from 3% to 7% of the estate’s total value. Navigating the legal process without a will (when someone dies ‘intestate’) can be additionally stressful, time-consuming and increase costly fees and expenses.
If your friend did not have a will, called dying ‘intestate’, the state’s probate laws outline who the beneficiaries are to her estate and who may be authorized to make legal or financial decisions on her behalf.
Laws vary from state to state and yes, probate is really a thing. Some general probate guidelines are:
- Personal representative. If your friend’s estate goes through probate, a personal representative will be appointed to manage her affairs. Like the executor of a will, this individual is responsible for settling the estate, paying any debts or taxes owed, and distributing assets to heirs. They will need a document from the court confirming they are authorized as the administrator of the estate.
- Next of kin. If your friend did not have a will and did not appoint a personal representative, her next of kin may be authorized to make legal or financial decisions on her behalf. Next of kin is generally defined as the spouse, children, or other close family members like parents or siblings.
- Power of attorney. If your friend appointed a power of attorney before she died, this individual may be authorized to make legal or financial decisions on her behalf.
So, what can you do to ensure that your critical estate planning documents and digital details are complete, correct and shared with your trusted people safely? Start here:
- Download GYST’s two most popular checklists (2-page Essentials and 14-page Expanded) for free and get a comprehensive overview of estate planning must-do tasks including information on wills, trusts, power of attorney, finances, insurance and more.
- Create a will and/or trust. A will and trust are legal documents that outline how you want your assets to be distributed after you die. It’s important to make sure you are 100% confident and comfortable with the language and terms in those documents. If you have any questions or concerns about your options, finances, family situation, etc. that might make creating your estate plan complicated or tricky – please consult or work with an attorney to ensure that your will is correct, comprehensive and legally binding.
- Organize your digital assets. Use a password manager or your own system to create and manage a list of all of your digital assets, including online accounts, social media profiles, subscriptions, services and digital storage. More companies are adding a Legacy Contact feature (obvious so why did it take so long?!) to their products and services. For example, Google has a built in ‘Inactive Account Manager’ and Apple has a built in Legacy Contact for your iPhone, check it out.
Remember, we’re all generally doing our best. Planning ahead is a critical (and doable!) way to ensure your family can find your important documents and assets when they need to. Taking the time to get organized now can save everyone a great deal of stress and expense in the future and you can stop worrying about it in the meantime. And, also no one – no matter how organized they are – can plan for every single possible scenario in the future. Please don’t try, it can be a catastrophe-loop black hole that’s hard to climb out of – trust me.
Upcoming Ask GYST posts include: How to manage digital accounts and if it is safe to use a password manager (I’m looking at you LastPass!), Is using an online legal template ok or do I really need a lawyer?, and How do I make sure my medical wishes are followed?
Have a Question? Please reach out and send Ask GYST your questions!