Where there’s a Will, there’s a Way (And when the Will is missing, you’re in trouble!)
One of the most troubling times in our lives occurs with the death of a loved one. Along with the grief we must endure comes an immediate, complicated, and sequential set of tasks that must be handled during the heart wrenching aftermath of our most painful loss. These tasks include notifying friends and relatives, planning the funeral, securing a burial plot, dealing with our own grief and that of others, and getting our loved one's final affairs settled and concluded.
One of the first questions that is asked after the funeral or memorial service, is “Where is the Will?” If an elderly parent, grandparent, sibling, aunt or uncle has lived alone for some time, it is often difficult and sometimes impossible to find their Last Will and Testament. This is especially true with our most elderly and vulnerable family members. The problem can be magnified if they are in failing health, especially if they have declining mental acuity. The individual may have placed this important legal document amongst a large collection of papers years or even decades ago. They may have moved into another home or senior residence and this document may be misplaced or boxed up, or even thrown away with other papers while cleaning or de-cluttering the home. This can now present a difficult issue with which to deal: the missing Will.
Under SC law, if an original Will cannot be located after a person dies and that person was the last known person to have possession of his own Will, our law presumes that the person destroyed his own Will, presumably because their wishes changed sometime after the Will was prepared, and so they destroyed their own Will. No matter what mom or dad or grandpa may have told you about their Will and how they wanted their assets distributed once they passed away; without the original, executed Will, their wishes may be ignored, violated, or outright theft may occur. Remember, a Last Will and Testament informs the world, including our probate courts, how you wanted your assets disposed of after your death. Without that original Will, the courts may have substantially different rules(laws) for how those assets will be distributed!
Our state does not mandate that a person's original Will be filed before their death and there is no depository for copies of Wills like a birth certificate, driver’s license, college scores, and other miscellaneous facts about a person. There isn’t anyone out there in the government, corporate or business world responsible for keeping your loved one’s final wishes by way of their Last Will and Testament, safe and secure from hackers and thieves. Perhaps there should be. A Life-Lock for our important papers and documents. But of course, such corporations and companies get hacked, broken into, and robbed too. What are we to do?
Many people wrongly believe that a copy of the Will is kept somewhere else and they need only call, get a copy sent, and problem solved. Wouldn’t that be lovely!? Unfortunately, this isn’t so. Now that you know this, let me ask you something. If your loved one died today, would you know where their Will is located? If you could not find it, do you know who prepared it? What was that attorney’s name? Does he or she still have a copy on file? Is the attorney still in practice? Still alive? Did your loved one prepare a new one after they retired to South Carolina? Were there any codicils? Amendments? Even if you managed to say yes to one of these questions and could locate a copy of the original Will, it has very little value and may not be valid in South Carolina because it is just that; a copy. Now you really are in a predicament!
As troubling as this may be, we all know that there are dishonest individuals who will take advantage of an opportunity. For example, someone has access to the home or safety deposit box, takes the Will because of what it contains, and now without an original Will, the whole game changes. A person who may have originally been left out is now magically (legally) entitled to a portion of the estate, or even the entire estate.
The law in SC does allow a copy of a Will to be presented and probated as a person's Last Will, but it can be a very difficult task and sometimes impossible, especially if other interested parties do not want the copy to act as the person's Last Will. In probating a COPY of a Will, you must present evidence to overcome the presumption that the Will was destroyed. This can be quite a hurdle. So, it is imperative that people place their Last Will and Testament in a safe, secure place where other persons cannot get to that Will. Clearly, cases exist where a person has died who had an original Will and the Will suddenly goes missing. Now the Will cannot be located because someone was not happy with the Will, so they took it and destroyed it. Unless ALL parties agree to probating a COPY of the original Will, should you be able to locate a copy, you will still have a tangled mess on your hands with a contested Will contest to probate the COPY of the Will.
With this in mind, it is critically important that you consider several factors. First of all, do you have a Will? Where is it? Who else knows where it is and what it contains? Do you trust everyone to act fairly? Could someone take it after you died? When you die, who will be able to get access to your Will? Will they do so alone or with others? Do you have the ORIGINAL Will or is it a COPY? Lastly, let me ask you one, final, question. “What if YOU died today?”
(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC 29575. The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law. Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)