To probate a will you typically need the original document for the courts to commence the legal proceeding. Unlike Trusts, LLC Operating Agreements, Powers of Attorney, etc., where a copy shall typically suffice, a valid will is expected to be an original will.
So what happens when there are two original wills that differ from one another?
It’s more expensive:
The first sentence of 99.9% of all wills is “I hereby revoke all wills and codicils.” This means that any previous version of an will is superseded by the new, most recent will. It also means that those parties who have been adversely-affected by the new will, must be given formal legal notice of the new will being offered to Probate. This, of course, costs money AND allows these parties the opportunity to challenge the newer will, in the hopes of overturning it. Depositions of witnesses to the wills may be required in order to validate the new will, which also costs money.
It’s more time consuming for the attorney and therefore also more expensive:
An attorney may also be broadsided by an existing original will being deposited at a courthouse without his or her knowledge. I recently probated an estate with a will from 3 years ago only to find out the deceased client had deposited an original fifteen year old will at the courthouse. I had to go back to my office and start from scratch (not to mention having to wait an additional 3 months, as the court did not inform me until I reached out to them).
So what’s the best approach? I can appreciate the fact that clients may want their attorney to draft them two original wills (one for their possession, one for the attorney if the client loses their copy), though I do not suggest this: If the client loses the Will a copy can suffice for a “Lost Will Proceeding” which is, again, not an inexpensive venture, but possibly just as expensive as having to reconcile an old original will in the attorney’s possession with the will in your possession.
Bottom line: Once you re-execute your will destroy the old one immediately.
Next week, when you should (and shouldn’t) have your attorney hold onto your original will.
Q FOR U: Do you have an old original will in your possession or in the hands of another person?
