After you die, your estate will pass in accordance with your last valid Will. If you have not made a Will, or have no valid Will, your estate will pass in accordance with the government’s intestacy rules, which may not result in your estate passing to the people you would have wanted.
Therefore if you have made a Will (which we would always suggest you should do if you are able to do so), it is vital to ensure that it can be found.
Is your Will likely to be found after you have died and, if whoever finds it are not the executors named in your Will (the people you have named to deal with your estate), are they likely to inform your executors of your death and the whereabouts of your Will?
Sometimes no trace of a Will can be found, even though it might be suspected that there is a Will somewhere. Other times a copy of the Will might be found, but not the original. In that circumstance, it might be possible to deal with the estate on the basis of the copy Will, but the failure to find the original could mean that the original has been destroyed, revoking it.
In the recent case of Blyth v Sykes (2019) an envelope was found containing a certified copy of the Will, an unsigned draft, an original Codicil modifying the Will but not the original Will. In this instance the court held that there was insufficient evidence to find that the Will had been revoked, and allowed the estate to be dealt with on the basis of the copy Will. However, in other circumstances, the court may not have made the same decision and, even in this instance, the cost and inconvenience of a court case was needed to enable the estate to be dealt with accordingly.
A person’s death is always likely to be a difficult and upsetting for their family, and ensuring that the Will can be found will prevent this issue at least from adding to these difficulties.
How can your Will be found after you have died?
- Keep a copy of your Will at home:
Wherever your store your original Will, we strongly recommend that you keep a copy of your Will at home with your paperwork.
Your copy will quite often contain an indication of where the original is stored (for example there might be a solicitor’s address on it).
Having a copy at home means that from time to time you can easily review it and ensure that it still reflects your wishes.
It might also be helpful evidence of your intentions in the event that the original cannot be found.
- Informing your trusted family and / or executors about that you have made a Will
Your Will is confidential to you whilst you are still alive. You do not need to tell anybody about its existence, nor about its contents.
However, if you feel able to tell your trusted family, and also the Executors named in your Will, about its existence, and most importantly where the original is stored, then this can help ensure that it is found after your death. This may be particularly important if you think there are family members or other people who might try and hide or destroy your Will before others find it.
- Storing your Original will at home
Some people prefer to keep their original Will at home with their paperwork.
This may be because they would prefer not to have to keep a record of who is storing it for them, possibly over many; they might also prefer that their Executors will not need to retrieve the Will from whoever is storing it.
However, please be aware that there are some risks with this approach.
- You could lose, accidentally throw out, or damage your Will. Have you ensured that you have stored your Will in a way that is protected against damage by fire, theft, flood etc?
- If there may be somebody who wants to hide or destroy your original Will, you may be giving them the opportunity of getting to your original Will before your Executors or other family
- There is a legal presumption that if the Will cannot be found having last been held by you, that you destroyed it with the intention of revoking it. Whilst, as in the case above, the Will can be held to be valid in these circumstances, this is harder to prove than if your Will was last held by a professional.
- Storing your Original Will with a solicitor
We consider that the best option is for your Will to be stored with a solicitor.
The majority of law firms have dedicated insured storage facilities for legal documents such as Wills.
This should make it less likely that your Will is damaged or lost than if you had kept it at home.
In the unlikely event that it is lost by the solicitor, then they will be insured and also the presumption will be that it was merely lost, and not destroyed with the intention of revoking it, unless evidence is apparent to the contrary.
Finally, the solicitor would only hand over your Will to the people entitled to deal with your estate, eliminating the risk that somebody could deliberately remove and hide your original Will.At Jordans Solicitors, we make no charge for storing your Will or retrieving it for your Executors or you to collect from us.
- Other Options
Some banks and building societies offer a Will storage service. This is a safer option than storing your Will at home, but they may charge for this, and may only offer this service if you have made the Will with them, or have appointed them as your Executors. On the basis that less banks are now offering Will making and Executorship services, it may be that this option is becoming less available.
You can store your Wills with other Will Drafters, but they may be unregulated and uninsured, there have been instances where extremely high storage fees have been charged, and there can be difficulties in tracing your documents if they go out of business.
You can register your Wills with Certainty (the National Wills Register) or with the Probate Registry.
The National Wills Register is the Law Society’s endorsed provider of a national will register and used by thousands of solicitors everyday to register and search for wills. Certainty will registration protects the testator, executors and beneficiaries as it ensures the will can be located upon death. However, please note Certainty does not see or store a copy of the Will, it simply registers the Will’s location.You can deposit your Will with the Probate Registry. There is a one-off charge of £20 to deposit a will or codicil at the Principal Probate Registry. So if you need to deposit both, make sure you submit them together in one envelope, to avoid being charged separately for each item. The form PA7 provides guidance on the government website on how to deposit your Will depending on your circumstances. It must also be noted that if you wish to remove your Will from the registry whilst you are still alive, you have to submit a specific form to do so.
In our view the safest option would be to obtain legal advice from a solicitor in relation to preparation of your Will, to store the original with that solicitor and to keep a hard copy at home for your records. If you consider that there is a possibility that someone in your family (whoever else may go through your personal papers after you have died) might try and hide evidence of the existence of your Will, then you should also consider letting other family members of the existence of your Will and its whereabouts and possibly consider registration with the National Wills Register.
At Jordans Solicitors we are proud to be a member of the Law Society’s Wills and Inheritance Quality (WIQS) Scheme. We also have specialist solicitors who are members of STEP (the Society of Trust and Estate Practitioners). We are pleased to advise you in relation to any Wills and succession issues, and also in relation to the administration of estates. Our wills and probate solicitors are based in our Wakefield, Dewsbury, Horsforth and Selby offices.