In the last issue of the Law Update, I wrote an article about choosing an executor of a will. So, you may ask, what happens if someone appoints you as the executor of his or her will? (The chances of this happening are actually quite good.) There are certain initial steps that need to be taken, and, depending upon your relationship to the decedent, when your role in that process begins will vary. Often with close relatives, your involvement could begin as early as discussing certain issues with the funeral director, such as obtaining copies of the death certificate and applying for Social Security death benefits and Veterans’ benefits. If you are a friend or a more distant relative of the decedent, your involvement may begin at a later point. But before you begin the formal process of probate, you need to find the will.
Sometimes determining whether the decedent had a valid, enforceable will can be simple, particularly if an attorney prepared the will and kept the original; other times it is not so easy. In Pennsylvania, there is no centralized depository system for wills; only after the person has died and the will is probated, does the will become a matter of record at the county level. Depending on the preference of the decedent, a will could be kept in a safe deposit box, at the decedent’s attorney’s office, in a fire safe at the decedent’s home or otherwise with the decedent’s personal papers. If the decedent’s relatives do not know where the will is kept, or if a will was even prepared, a thorough investigation must be made. The most logical places to look are the decedent’s home, financial institutions, attorneys and accountants. Remember, not only are you looking for a will, but any codicils (amendments) that may exist.
Once you have located what appears to be the decedent’s will, how do you know if it is valid? Never assume that it is not a valid will – leave it to the court to make that decision. Sometimes all that is found is a photocopy of a will or a handwritten document with no attestation of witnesses. Some states will allow a photocopy of a will to be probated if it can be shown that the original was lost or destroyed without the testator’s consent. This process can be complicated (and this varies from county to county), but may be necessary to effectuate the testator’s intent.
A will that is handwritten and signed by the testator, whether or not it is attested by witnesses, is called a holographic will. In about half of the states (Pennsylvania being one of them), holographic wills are permitted. Among the risks in preparing a holographic will is the case where a testator writes a will in a state that recognizes holographic wills and then moves to another state that does not. Several states require that if the will is handwritten, the entire will be in the handwriting of the testator. These days with the proliferation of computers, a person intending to avoid legal fees by preparing a will on his home computer, could end-up with an invalid document.
Other problems arise when pre-printed forms of will are used. In one case before the Arizona Court of Appeals, a printed will form used by a testator was held invalid because it did not satisfy the requirements of the Arizona statute, nor was it considered a holographic will because the material provisions, those establishing the testamentary intent, were in the pre-printed form and not in the handwriting of the testator.
If you are fortunate, none of these issues will arise and finding the decedent’s will be as simple as a phone call to the attorney.
Now, after reading this article, you may think to yourself: What are the chances of this really happening? Well, here’s a short anecdote from one of the attorneys at our firm: Years ago, the attorney had prepared a will for an elderly client. Instead of having our office retain the original will, the client opted to take
it with him. When the client passed away, his relatives thoroughly searched his house for the will, but to no avail. After considerable effort we were able to probate a photocopy of the will and complete the administration of the estate. A few months later, the client’s son called the attorney – they found the will under the rug.
— Denise Ciampitti