LegalBeagles.info » Library » Wills – Guides » Locating A Will

Locating the Will and checking its validity.

Where can I find the Will?
Validity of the Will
Important Issues for YOUR Will
Principle Registry Address
Probate Registry Address

Where can I find the Will?

Under England and Wales law there is no requirement to register a Will once it is prepared, unlike Spain, for example where every Will prepared must be registered before death at a central registry. Before a person dies the Will is considered their private, personal property and no-one can demand to see it. Following a death and once a Grant has been issued then the Will and the Grant are public domain documents and can be viewed by anyone for a small fee.

So, what happens between the death and obtaining the Grant?

You may know or suspect there is a Will, but where can it be found? You may be a named executor or a close family member needing to locate the most recent Will or just need to check whether the person who has died even prepared one. Hopefully, the person who died had previously let the relevant executor or close family know where they have left their Will, but this isn’t always the case.

In the first instance, you would need to search the deceased’s personal belongings. You may not locate the original Will but there may be some indication of where it may be stored, such as a solicitor’s letter, or documentation relating to the storage of the Will. It would be sensible to then contact the firm or company on the documentation and ask them if they hold the Will, explaining the situation. It may be necessary to provide an official copy of the death certificate, before the organisation will confirm whether a Will is held. If someone had an accountant it may be worth contacting them too, if you cannot find any documentation specifically about the Will.

The person may have placed their will with their bank although this is becoming rarer and many banks are refusing to keep wills any longer or may even have returned the will to the individual.

Another option but again not very common, would be where the person has deposited their Will at the Principal Probate Registry. Amongst the persons belongings there should be a certificate of deposit. If this is found then the executor should obtain and complete a withdrawal form from the Principal Probate Registry who can be contacted on 020 7947 6000/7022.

Once the necessary withdrawal form has been completed, send it with the certificate of deposit and an official copy of the death certificate to:

Principal Registry of the Family Division,
The Principal Probate Registry
7th Floor First Avenue House
42-49 High Holborn
London
WC1V 6NP.

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If the certificate of deposit cannot be found, your executors will need to write explaining this. Once they have received the will, they must return the acknowledgement of receipt. There is no fee for this.

If you do not know whether the person deposited their Will at the Principal Registry then you would need to complete a form PA1S which can be obtained from HMCTS.

Once the PA1S is competed you need to send it, with the requisite fee, to Leeds Probate Registry at:

The Postal Copies and Searches Department,
District Probate Registry,
York House,
31 York Place,
Leeds,
LS1 2BA.

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In the case of solicitors, accountants and banks, you may discover that a professional executor has been appointed on the Will. If a professional has been appointed and the estate is simple and straightforward, it may be sensible to have a discussion whether the professional would be prepared to renounce their appointment to allow the family to deal with the estate. There may be valid reasons that the deceased wished a professional to act as their executor, maybe due to family feuds or possible issues that they thought may arise once they have gone.

Where the estate is a simple estate, a professional executor should consider renouncing as they also have a duty to the beneficiaries to protect the assets for them. It could be argued that in the case of a very simple estate with no complications or other considerations they should consider stepping down or renouncing, to save the professional fees that will be incurred if they continue to act and which will reduce the amount of the residuary estate available to be distributed.

The original Will cannot be released to anyone other than the executor except in special circumstances for example the executors have predeceased the testator. It would then be possible for a beneficiary to obtain the Will once they have demonstrated there are no other executors.

What if you can’t find any correspondence giving you a starting point?

There is a National Will Register that was set up by a company called Certainty. It is not a compulsory register but some law firms do use their services and register any Wills they hold with the company. In addition, they have a will search system that can contact solicitors to ask them to check their firms secure storage. There will be a fee to use this service.

Another option is to contact the local law society, where the deceased lived. They may be willing to send a round robin e-mail to local solicitors, asking them to check their strong rooms.

The Law Society will also be able to help if the solicitor that held the original Will is no longer practising. If they held the original it will have been allocated to another firm which the Law Society will have details for.

If you can only find a copy of a Will it may still be possible for this to be used to obtain a Grant. An affidavit would be required and it is advisable to seek advice on this.

Once you have located the Will, wherever it is held, it will not be released to you without them having sight of an official copy of the death certificate and confirmation of your identity.

If you are uncertain whether there even was a Will and your investigations have drawn a blank then it would be necessary to apply for a Grant of Letters of Administration to deal with the estate. The strict rules of intestacy would then need to be followed regarding how the estate is then dealt with.

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Validity of the Will

Once you have obtained the Will you will need to check that it is valid. When a Will is prepared there are certain legal requirements and formalities that need to be followed to ensure that it is valid.

The person making the will (the testator or testatrix) must have been over 18 when they made the Will. The only exception to this is if the person is a soldier on actual military service, a mariner or a seaman at sea.

There are then five formalities that need to be followed when the Will is created:-

• The Will must be in writing – handwritten or typed, preferably in the same ink with no amendments

• The Will must be signed – usually at the end of the Will either a signature or a mark is acceptable provided this is explained. All pages of the Will should still be securely fastened together.

• An intention to create a Will – use of an attestation clause will demonstrate this. If there is no attestation clause then an affidavit may be required confirming the belief of the testator’s intention to create a Will.

• The testator must have signed or placed their mark on the Will in front of two adult witnesses – generally at the end of the Will.

• The two witnesses must sign or acknowledge the testator’s signature or mark. NB If any beneficiaries or their spouses or civil partners witness a Will then the beneficiary will not be entitled to any legacy due to them under the Will.

Any Will is presumed to be properly signed unless there is evidence to suggest otherwise. This is the known as the presumption of due execution.

A codicil which is a separate document that amends a Will must also be signed and witnessed in the same way to be valid. A valid codicil is read in conjunction with the Will.

There is further information on Will validity here >> How to make Sure my Will is Valid

If you have any doubt over the validity of the Will then it is advisable to seek some legal advice on what steps can be taken to rectify any issues there may be or how else the will can be dealt with.

 

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Important Final Comments and Suggestions if YOU have a Will

Once the Will has been signed and witnessed no other marks should be made on the document anywhere and it should be kept safe and secure. It is advisable to let your executors know where the original Will is located. If you are willing to, provide them with copies of the original Will and any letters of wishes or other relevant documents, such as a funeral plan.

At the very least ensure that the people who will be dealing with your affairs when the time comes, know where to locate important documents, including your Will. Don’t forget to let them know if you change any arrangements or location these important documents are kept.

It is important that if you make the effort to prepare a Will, you check it occasionally to make sure that it is still as you would wish and to update addresses. A note can be kept with your Will confirming changes of address, it is not necessary to change your whole Will for this sort of change.

Never mark the original Will with any changes, as this may make clauses invalid. Until a new Will is prepared and signed complying with the legal requirements, the old Will remains valid but may be subject to changes of clauses that have been amended and not legally formalised correctly, unless the Will is destroyed completely by the testator.

It is generally thought your will should be reviewed every five years or sooner if your circumstances change drastically.

 

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Please note that information which we provide in our guides is in outline for information purposes only. The information is not a substitute for advice from a professional adviser. We cannot guarantee that information provided by our guides will meet your individual needs, as this will depend on your individual circumstances. You should therefore use the information only as a starting point and always seek professional advice if you are unsure.

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