Following the death of a loved one, there’s always a chance of uncertainty and even tension when it comes to settling their estate and distributing their property and assets. Even with a properly written and executed will, grey areas can arise, requiring tough decisions and possibly even the involvement of the court system.
Things get dramatically more complicated, though, if the deceased person’s (the decedent’s) will cannot be located. Sometimes, the will cannot be found because it was never written. In other cases, it was lost, accidentally destroyed, or disposed of at some point. In others, however, something far more sinister is taking place: another relative or other person has found the will and is hiding it.
There are several motivations for someone to hide a will. Still, none of them is a legitimate legal excuse for hiding a valid will and preventing it from being executed according to the decedent’s wishes. In this article, we’ll look at some options the decedent’s proper inheritors may have in order to make the offending party produce the will and start correctly closing the estate.
Why Would a Family Member Hide a Will?
Typically, a family member or other person hides a will because the terms or contents of the will are unfavorable to them:
- The will may expressly exclude them from receiving any of the decedent’s assets.
- The will may only specify that they are due a smaller-than-expected portion of the assets.
- The will may contain facts about their relationship with the decedent or expose other information they wish to keep secret.
In any case, the person hiding the will typically feels that they will be in a better position if the will is not located and filed with the court.
Is It Legal to Hide a Will?
There’s ample confusion regarding wills and the Georgia courts. People often confuse the terms “filing a will” and “probating a will”, and many believe filing a will with the court is optional in Georgia.
While estates are not required to go through probate (technically referred to as “opening the estate”), especially if the decedent established a trust or transferred assets as they wished before their death, it is a legal requirement that wills be filed in the probate court where the decedent was living at the time of their death.
Finding a person’s will after their death and not filing it with the probate court is illegal. At the very least, it is considered contempt of court and carries all the legal repercussions of other contempt charges. If it’s done with the intent of defrauding other inheritors from their intended inheritance, however, it becomes the much more severe crime of fraud and can lead to significant fines and even jail time.
How Can I Tell if a Family Member Is Hiding a Will?
The first step in making that determination is knowing that a will exists in the first place. If the decedent ever showed you their will, mentioned having a will, or otherwise gave you reason to believe that they drafted and signed a will before their death, then a will probably exists somewhere.
If you’ve searched through the decedent’s documents and home and cannot locate the will, there are a few other places you can look:
- If the person used an attorney to help draft the will, the attorney’s office should have a copy.
- Examine banking records to determine if the deceased had a safe deposit box or other off-site location where a will might be stored.
- Contact the probate court in the jurisdiction where the person lived at their death and see if the will has already been filed.
If the will isn’t found in one of those locations, someone else may be hiding it. Identifying the person may be complicated, but things like suddenly withdrawing from the family, becoming noncommunicative, or acting suspicious may indicate that someone is trying to keep a secret from the rest of the family.
What Can I Do If a Family Member Is Hiding a Will?
The best advice is to seek legal representation immediately. While it might be possible to confront the person directly and demand they produce the will, that can backfire if not handled correctly, and the person could destroy the will, leaving the decedent intestate and putting their estate at the mercy of the courts.
Sometimes, when the reality of the severity of the penalties that can come from hiding a will is explained to the person, they’ll relent and produce the will for proper filing and execution. Other times, this strategy will not be enough, and you will have to prosecute or litigate to bring the matter to light.
If matters reach that extreme, it’s vital that you have experienced legal counsel to initiate and litigate the case on your behalf and maximize the likelihood that your loved one’s final wishes will be carried out to the letter.
How Can I Prevent This From Happening When I Die?
As with most things, open and honest communication is the best way to prevent this turmoil from occurring after your death. To remove the ability for one person to derail your wishes after your death, consider the following options during your estate planning:
- Make sure all of your beneficiaries have a copy of your current will.
- Make sure your original is filed in a safe place.
- Use an online service to share your will with your family. These services allow all beneficiaries to view the will without being able to make changes to it.
Is Someone Standing in the Way of Your Loved One’s Final Wishes? Contact the Trusted Attorneys at Walker, Hulbert, Gray, and Moore.