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How to Find Out if Someone Has a Will – Where to Look and Who to Call
One of the first things to do when someone dies is to find out whether that person had a will, and then find it, so that probate can begin. In many cases the testator told the executor during life where the will is kept. When the location is unknown, the executor has to do some checking to learn whether a will exists and where it might be.
Where to Look
The first place to look is the home, apartment or safe deposit box of the person who died. The second is the office of the estate attorney who drafted the will. When an attorney drafts a will, the attorney sometimes keeps the original, together with the witness affidavits, in a safe place the attorney and staff can always reach. A thorough search covers all of the following.
| Place | Why it may hold the will |
|---|---|
| Home filing system | File cabinets, desk drawers and home offices where the deceased kept important papers. Wills are usually kept with other important documents. |
| Home safe or lockbox | Fireproof safes are a common place for important documents. |
| Bank safe deposit box | Rented secure storage often holds wills and other valuable papers. Opening it may require a court order (see below). |
| Attorney’s office | Many attorneys retain client wills in their office vault. |
| Surrogate’s Court | New York allows a will to be filed with the court during the testator’s lifetime. |
| Accountant or financial advisor | Some clients leave copies with their tax advisors, and some wealth managers retain client documents. |
| Bank or trust company | Particularly where the institution is named as trustee. |
| Insurance company | Wills are sometimes kept with insurance documents. |
| Family papers | The document may have been given to a family member for safekeeping. |
The Drafting Attorney Is the Best Starting Point
Contacting the drafting attorney is usually the most productive first step. The attorney’s records show whether a will was drafted and when; the attorney often retains the original or a copy, along with the witness affidavits and drafting notes; and the attorney can confirm whether the will was executed and whether it was later updated. To identify the attorney, check the deceased’s address book, prior tax returns (attorney fees may appear), check registers showing payments to lawyers, and email for correspondence with attorneys.
If the will was drafted recently, finding the attorney, and with the attorney the will, will probably take no more than a phone call or two. If the will was drafted years or decades ago there can be complications. When a New York City estate attorney retires or dies, the wills that attorney drafted are usually passed to another attorney. The decedent was most likely told who now holds the will, but that information may never have reached the executor.
If the attorney is retired, tracking down the will may still be a matter of a few calls. If the attorney has died, finding the lawyer who took over the files is harder; the local bar association is a good place to start, as someone there is likely to know. If the drafting attorney worked at a firm that still exists, the firm probably still has the will regardless of what became of the individual lawyer.
A further complication arises when the will was never in the drafting attorney’s possession, or when the decedent wrote the will alone. Then the executor must simply search the most likely places, which usually means the home safe or file cabinet where the decedent kept other important papers.
Searching the Safe Deposit Box
If the executor is an authorized signer on the box, the executor can open it directly. If not, the executor must petition the Surrogate’s Court for an order authorizing the box to be opened. The bank may require specific documentation, such as the death certificate, the court order and identification, and some banks require bank personnel or a court representative to be present when the box is opened. The contents may also need to be inventoried for estate purposes.
Wills Filed With the Court Before Death
New York allows a will to be filed with the Surrogate’s Court during the testator’s lifetime under SCPA § 2507. The will is held in a sealed envelope at the court, can be opened only after death or by court order during life, and can be located by searching the court’s records under the deceased’s name. This is the most physically secure storage available, though it is not commonly used. When other searches fail, a check of the court’s records will confirm whether a filing was made.
Documents to Look For Alongside the Will
While searching for the will, gather the related documents too.
| Document | Why it matters |
|---|---|
| Codicils | Amendments to the will, which are probated together with it. |
| Prior wills | Relevant if the current will is challenged. |
| Trust documents | Revocable living trusts often work together with a pour-over will. |
| Powers of attorney | Show who had authority to act for the deceased during life. |
| Health care proxy and living will | Record end-of-life wishes. |
| Memorandum of personal property | Says who receives specific items. |
| Beneficiary designations | Control retirement accounts, life insurance and similar assets outside the will. |
| Burial instructions | Some testators leave specific directions about funeral and burial. |
If the Will Cannot Be Found
Before concluding that there is no will, ask whether the search was truly thorough; a second look often produces the document, and wills sometimes surface long after the first search. Next, ask whether a copy exists. Drafting attorneys typically keep a copy even when the original was returned to the client. If you have a copy of the will, you may be able to probate the copy under SCPA § 1407.
That route is not easy. When the deceased is known to have made a will and the original cannot be found, the law presumes the will was revoked. To overcome the presumption the proponent must show that the deceased did not have possession of the original, or that it was destroyed by some cause other than the testator’s own act, and must prove the will’s contents through copies or witness testimony and show that the deceased’s words and conduct reflected a continuing intent to be bound by it. If no will can be probated, the estate is administered as if the person died without a will, and the intestacy rules decide who inherits.
Why Time Matters
There is no firm deadline to offer a will for probate in New York, but prompt action still matters. Estate assets need to be secured and administered, estate tax returns are due within nine months of death, creditor claims run on their own time periods, and witnesses become harder to find as time passes. Lost-will cases in particular get harder as memories fade. Search promptly, and start proceedings as soon as the will is located.
Talk to Us
We cannot find out for you whether someone had a will, but once you find it we can represent you in probating it, in compelling a person who is holding the will to file it with the court, or in administering the estate if no will turns up. Call 212-233-1233 or write to [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
