How to Find Out if Someone Has a Will – Where to Look and Who to Call

One of the first things that you need to do when someone died is to find out if that person had a will and find it, so that probate proceedings can begin. How do you find out if someone has a will? In many cases, the testator tells the executor during his or her life where it is that they can find the will. However, there are times where the location of the will is unknown, meaning that the executor may have to do a bit of checking to find out if the person had a will and where it would be.

The first place to try to find a will is the house, apartment or safe deposit box of the person who died. The second place you can try to find the will is the estate attorney of the person who died. When an attorney drafts a will for a client, they sometimes keep the original, along with other documents, such as witness affidavits, in a safe place where the attorney and the attorney’s staff will always have access.

If the will wasn’t drafted very long before, finding the attorney, and therefore the will, probably will not be very hard to do, meaning that a phone call or two would be all that is needed to find the will. However, if the will was drafted years or decades before, there could be some issues. If the New York City estate attorney who drafted the will retired or passed away, the wills that attorney-drafted were most likely passed along to another attorney. While the decedent would have most likely been notified of who it is that now has the will, that person may not have passed that along to the executor.

If the former attorney is retired, how do I find out if my loved one had a will? Tracking it down may still be a matter of a few phone calls. If that attorney died, however, finding the attorney who took over keeping the wills will be harder to find out. Contacting your local bar association may be a good start, as it is likely that someone there may know. If the attorney who drafted the will worked for a firm when the will was drafted that is still in existence, that firm probably would still have the will, regardless of what happened to the individual attorney.

One complication for the executor would be if either the will was never in the possession of the drafting attorney or if the decedent wrote the will alone. In a case such as that, the executor would have to find what would be the most likely places for the will to be. Usually, wills are kept with other important papers, which means they could be with those papers at home in a place such as a safe or a file cabinet.

If the potential executor has to check the contents of a safe deposit box at a bank in search of the will, he or she would need to file a motion with the Surrogate’s Court to have the box opened, unless the executor is an authorized user of that box.

If the will remains lost after all of these efforts, it is very likely that the estate would be treated as if the person died without a will, meaning that intestacy succession rules would apply. If you have a copy of the will, you may be able to probate the copy – read this post.

Whether you checked for a will and found it and you need an attorney’s assistance probating a will, or you did not find the will and you need representation in estate administration, call the Law Offices of Albert Goodwin at (212) 233-1233. We cannot find out if someone had a will, but we can represent you in probating the will once you find it or in compelling a person who has the will to file it with the court.

Comprehensive Places to Search

A thorough search for a will should cover multiple locations:

• Home filing system. File cabinets, desk drawers, and home offices where the deceased kept important papers.
• Home safes and lockboxes. Fireproof safes are common locations for important documents.
• Bank safe deposit box. Bank rented secure storage often holds wills and other valuable documents.
• Attorney's office. Many attorneys retain client wills in their office vault.
• Surrogate's Court. Pre-death will filings are possible in New York.
• Accountant's office. Some clients leave copies with their tax advisors.
• Financial advisor's office. Some wealth managers retain client documents.
• Bank or trust company. Particularly if the institution is named as trustee.
• Insurance company. Sometimes wills are kept with insurance documents.
• Among family papers. Documents may have been given to family members for safekeeping.

The Drafting Attorney as Best Starting Point

Contacting the drafting attorney is typically the most productive first step:

• The attorney's records typically show whether a will was drafted and when.
• The attorney often retains the original or a copy.
• The attorney has supporting documentation (witness affidavits, drafting notes).
• The attorney can verify whether the will was executed and whether updates were made.

To identify the drafting attorney, check the deceased's address book, prior tax returns (attorney fees may show), check book registers showing payments to attorneys, or check email records for correspondence with attorneys.

Searching the Safe Deposit Box

If the deceased had a safe deposit box, accessing it requires specific procedures:

• If the executor is an authorized signer. Direct access using the executor's existing authorization.
• If the executor is not authorized. Petition the Surrogate's Court for an order authorizing the box to be opened.
• The bank may require specific documentation. Death certificate, court order, identification.
• The bank may require representatives present. Some banks require bank personnel or a court representative to be present when the box is opened.
• The box may be subject to estate inventory. Contents may need to be inventoried for estate purposes.

Pre-Death Will Filings

New York allows lifetime filing of wills with the Surrogate's Court under SCPA § 2507. If the deceased used this option:

• The will is held in a secure envelope at the court.
• It can only be opened after death or by court order during life.
• It provides the highest level of physical security.
• It can be located by searching the court's records under the deceased's name.

Pre-death filings are not commonly used but are a possibility when other searches fail. A search of court records can confirm whether a filing was made.

What to Do If the Will Cannot Be Found

If the will cannot be located despite thorough search:

• Determine if the search was truly thorough. Sometimes a second look produces the document.
• Assess whether a copy exists. Drafting attorneys typically retain copies even when the original was returned to the client.
• Consider lost-will probate. SCPA § 1407 allows probating a copy in some circumstances.
• Proceed with intestate administration. If no will can be probated, the estate passes by intestacy.
• Continue investigation. Wills sometimes surface long after initial searches.

The Lost Will Presumption

If the deceased was known to have made a will but the original cannot be found, a presumption arises that the will was revoked. To overcome this presumption:

• Show the deceased did not have possession of the original.
• Show physical destruction by causes other than the testator's revocation.
• Show the will's contents through copies or witness testimony.
• Establish that the deceased's actions and statements indicated continued intent to be bound by the will.

Overcoming the presumption is procedurally difficult and may not always succeed.

Documents to Look For Alongside the Will

When searching for a will, also look for related documents:

• Codicils. Amendments to the will that should be probated together.
• Prior wills. Sometimes relevant if the current will is challenged.
• Trust documents. Revocable living trusts often work in tandem with pour-over wills.
• Powers of attorney. Document who had authority to act for the deceased during life.
• Health care proxies and living wills. Indicate end-of-life wishes.
• Memorandum of personal property. Specifies who receives specific items.
• Beneficiary designations. For retirement accounts, life insurance, and similar assets.
• Burial instructions. Some testators leave specific instructions about funeral and burial.

The Time Element

While there is no firm deadline to file a will for probate in New York, prompt action is important:

• Estate assets need to be secured and administered.
• Tax deadlines may apply (estate tax returns within nine months of death).
• Creditor claims have specific time periods.
• Witness availability may become an issue over time.
• Lost-will cases become harder as time passes and witnesses' memories fade.

The search for the will should be conducted promptly, and proceedings initiated as soon as the will is located.