How can I find out if my recently deceased father had a will?

Unfortunately, when someone dies there can be a great deal of grief, chaos, and turmoil. Not only are relatives and friends grieving over the loss of a life, they are also dealing with other issues such as writing an obituary, picking out a casket, and organizing a funeral. At some point, however, loved ones will have to consider what will happen to the deceased’s estate, a process which is specifically decided by a will.

Recently on our legal forum a user asked, “My father recently died and my brothers and sisters and I have no idea if he had a will. What do we need to do to find out if a will existed?”

Last will and testament and sound estate planning

Generally, assuming someone did some type of estate planning, they will leave their last will and testament with their estate lawyer. The deceased would also have had the foreknowledge to choose an executor and make sure the individual agreed to perform the requisite duties.

If all of this occurred, at the time of death the executor would contact the lawyer and review the will. The executor then would publicize the will, generally by scheduling a meeting for all concerned parties to hear the contents of the will.

The executor will also have other responsibilities and duties which they are required to fulfill. For example, the executor generally must publicize and probate the will. Laws the executor is required to perform may differ by state.

With or without a will- Probate

It is also quite common, however, for individuals to die without a will. If this happens there may not be an executor assigned by the deceased. The good news, however, is that the estate must go through probate, with or without a will.

During probate the court will determine the legitimacy of the will or, if a will was not created, decide who should inherit the property. Decisions for inheritance in absence of a will are determined by state intestacy laws.

If you never heard whether or not your father had a will or assigned an executor but you suspect he may have, you can contact the probate court and find out if anyone has started the process to probate the estate. If so, you should be able to request a copy of the will, assuming it exists.

Intestate Succession and dying without a will

If your father did not have a will instead of verifying the validity of the will, the court will appoint an administrator to distribute your father’s property, pay his creditors, and settle all other claims against the estate.

If there was no will, as mentioned above, the laws of the state, rather than your father’s wishes, will determine how the property is distributed. State distribution laws vary; you can review your state’s laws with an estate attorney.

To find out about an intestate estate you can also contact the court and try to get information about who took control of the property. This information is generally public record.

Filing a lawsuit

In some cases, family members may illegally take control of another person’s property after a death. If you suspect this is the case, you can contact a lawyer and file suit against that individual, forcing them to disclose the contents of a will.

Property not included in probate

Another consideration is whether or not your father had property which could be excluded from probate through joint ownership of property with a right of survivorship or through a trust.

For example, if your father did not have any assets, such as a house or car, and only had a pension plan, this money may have passed to another family member and avoided probate, assuming your father named them the beneficiary on the plan documents. Additionally, your father could have used a trust to transfer property to another person upon his death.