I am often asked what to do when one cannot find the will of the deceased even though it is known that a will was done. Over the years I have heard many stories of where wills have been found. Below are some hints to help you in your search.
Even though it seems like a cliche, people really do hide their wills under their mattresses. Don't neglect this obvious hiding place.
Of course, a common place to put important papers is a safe deposit box. Safe deposit box keys are usually on the large size and often do not have the grooves one sees on normal keys. They often say "Do not duplicate" and are usually aluminum or silver in color. If you find such a key call each bank where the deceased had a checking account or savings account to see if there is a safety deposit box. Please note that one will usually have to get a court order to open a safe deposit box if you are not on the signature card.
I have known some people who kept many important papers in the glove boxes or trunks of their cars. Make a thorough search of all vehicles.
People I know who conduct estate sales report finding all kinds of interesting papers in the pages of books. If you have run out of ideas as to where the will could be, try going through the books to see if the will has been stuck between the pages.
Some people have wall or floor safes. Those are obvious places to put a will. Such safes are often in out-of-the-way spots such as closets and garages. Make a thorough search.
Many times the will is left with the attorney who drew it up. How to find the name of the lawyer is the problem. If you find a business card of a lawyer be sure to call that lawyer or law firm. If the lawyer says the lawyer does not do wills be sure and explain the situation and ask for the names of all lawyers to whom clients have been referred for wills over the years. If the lawyer is in a law firm and says the lawyer did not do the will, ask to speak to a lawyer or paralegal in the wills and probate section to see if they have the will. A business lawyer may refer someone to the firm's probate section without a second thought and forget that the client even called to have a will made. Be thorough in your search.
If you cannot find a business card you have a harder problem. I suggest you go through all check books carefully. Look for checks to law firms. For any individual whose name you do not recognize, you will have to check the yellow pages to see if that person is an attorney. This is not an easy approach, but it sometimes will lead you to the attorney who drew up the will. You will have to go back many years, because people often do not revise their wills regularly.
Although it is often a long shot, you can call all the lawyers in town to see if they wrote the will. It the larger cities try the lawyers who advertise that they do wills. In smaller towns call each lawyer in the yellow pages. Don't forget that the deceased may have had the will drawn up long ago. You may have to check several towns. The phone company can supply you with yellow pages for any town in Texas.
Friends of the deceased are often witnesses to a will. They should be asked if the deceased ever mentioned where the will was kept or who drew it up. The deceased's address book will be a source of names to call.
Under Texas law one is allowed to file the will at the courthouse. This was more common in the past than it is now, but do not neglect to call the courthouse (ask for the Probate Division) to see if the will was filed at the courthouse.
If you find something after the search, take it to a lawyer. Photocopies of wills, "old" wills that have been replaced with new ones and even unsigned copies can be useful to an attorney. They are not the same as a signed will, but the lawyer often finds such "copies" very helpful.
As you can see, finding a "lost" will is not easy. As with many aspects of life, prevention is the best policy. Try to get your loved ones to tell you where they intend to keep their wills and at which bank their safe deposit box is. I know this is not always easily done without appearing "greedy," but it will be extremely difficult to carry out the wishes of the person who made the will if that person does not let someone know where the will is kept.
Written by Donald Ray Burger, Attorney at Law mail comments to burger@donaldburger.com
Last revised: June 26, 1999