If your loved one has recently passed away or deemed mentally incompetent, you’ll need their estate planning documents. Wills, trusts, powers of attorney and other estate planning documents are designed to distribute their property according to their wishes. Unfortunately, sometimes those documents are hard to locate. Here’s what to do when you’re missing the documents and can’t ask your loved one where they are.
Check These Places First
Before you give up on finding the estate planning documents, make sure you’ve covered all the most likely places. Close relatives and friends may know where to find the will. Failing that, safe deposit boxes are popular spots to stash a will. They may also have left the original or a copy with the drafting attorney. Finally, check any safes or lockboxes in the home.
Spoliated Wills
Ohio courts allow parties to admit lost, damaged, or purposefully misplaced wills, sometimes referred to as “spoliated wills.” This requires an evidentiary hearing in front of a judge or magistrate.
Under Ohio Revised Code Section 2107.26, certain elements must be proved before a spoliated will can be allowed. First, the lost or damaged will must have been valid under the law. It must include the information needed to distribute the decedent’s property, and they must not have revoked the will.
Before the hearing, whomever is seeking to admit the will to probate must notify all interested parties—not only interested parties under the spoliated will, but anyone else who was named in previous versions of the will. The idea is to give all parties a chance to contest the will, if necessary.
At the hearing, the judge or magistrate will evaluate the will according to the factors above. The submitting party must prove those factors under a “clear and convincing evidence” standard. If they fail to prove that the lost will was indeed a valid will, the will cannot be admitted to probate.
Absent any other option, the estate will go through probate as if the testator had died without a will. All property will be distributed according to the state’s intestacy laws.
The key takeaway: when you want to control to whom your property is distributed, it’s important that you not only have estate planning documents, but that your loved one knows where to find them.
When you need help creating your estate planning documents, Dworken & Bernstein can help. Call us today to get started.
