Lost Last Will and Testament – Can I blame the attorney?
December 2, 2021 7:19 AM   Subscribe

My father was a hoarder and I can't find the original Will.

Months before his death I had to go through his home and extract documents to keep or dump. I kept the things that looked important – deeds, the Will, tax info, etc. There were many copies of the Will (all the same, dated 2020). The last page listed specific bequests – I (naively) tore it off for my easy reference and kept it handy in a folder. The one I took it from was apparently the original. It is signed in blue ink and matches the copies I have. He died last month, and I cannot find the rest of the original Will. I have that last page…, but not the rest of it. I think that when I was filing things later I threw away the original, minus that last page, because from the front it looked like a copy, not an original.

This law firm says that they provide copies of Wills with a backing binder of a blue piece of paper stapled to it with three staples across the top and the word COPY stamped on the front of it. The firm provides originals in a three times stapled white binder page with no stamp on the front. The last page of the Will that I have has one staple mark in the upper left corner. No backing, no indication that it was stapled three times and ever had a backing binder/cover, contrary to what they told me when I asked about how they issued original Wills to their clients.

Without the original the attorney has to do...many extra, expensive things to get a judge to declare the Will valid. Are there standards in the law industry as to how to present an original Will to a client? Why on earth don’t they stamp ORIGINAL on the front of the original?
posted by ShaSha747 to Law & Government (4 answers total) 1 user marked this as a favorite
I'm sorry for your loss and for the extra annoyance the paperwork is causing you.

>Are there standards in the law industry as to how to present an original Will to a client?

The format as described above is standard in the sense that I've seen it used many time, although I can't find anything that would define it as a capital S standard in the sense of it being required.

>Why on earth don’t they stamp ORIGINAL on the front of the original?

In my experience this is common with most civil legal documents, the original is the original and signed in blue ink, and all the copies are marked as such. They don't do it any other way because they assume everyone just knows this.

If you want to get pedantic it's probably because the copy should be EXACTLY the same, with no deletions of any sort. If the original said original somewhere on it then all the copies would too, which would be an equally large if not larger problem.
posted by tiamat at 7:32 AM on December 2, 2021 [11 favorites]

Also because if you then make a copy of the stamped original, then there's a copy with an "original" stamp on it, which is just asking for trouble.

I'm sorry for your loss. With the caveat that this is not legal advice, probate is a state-law matter, and there may be some local variation, so there's no harm in doing a little of your own research: The law firm doesn't "issue" a will. It's prepared according to client directions. (I'm not aware of there being a formal standard, although, again, their described practice is common in my experience.) The original can be retained by the law firm, generally at additional cost to the testator, or kept by the client in a place of the client's choosing. Sounds to me like you threw away an important wet-ink document which your father didn't store with sufficient care and are trying to hold the firm responsible for it.
posted by praemunire at 7:47 AM on December 2, 2021 [7 favorites]

It's not on the law firm. You destroyed the will and they were not required to hold onto the original. Depending on state law, you could have a copy admitted to probate by proving that the testator wasn't the one who destroyed it (destruction by testator can be proof that he revoked the will). It shouldn't be difficult and might require only a copy of the will and an affidavit by you about what happened. People lose original wills all the time; as long as the court is satisfied that the testator did not revoke it by destroying it, the copy will probably be admitted.

Get thee to a probate attorney, tell them what happened and ask about the state law requirements for admitting a copy.

(JD, editing books for a legal publisher on estates law for 30 years.)
posted by ceejaytee at 8:19 AM on December 2, 2021 [23 favorites]

Are there standards in the law industry as to how to present an original Will to a client? Why on earth don’t they stamp ORIGINAL on the front of the original?

I have done some basic estates work in my early law career, and our only "standard" was that we delivered the will in a nice little sleeve that looked official. Our small practice didn't even keep copies ourselves: we witnessed the signatures, made sure the document was properly signed off, and then advised them to keep it somewhere safe.

In some very very basic wills (e.g. husband gives all to wife of 30+ years if living, or splits evenly with 2 kids if not), we allowed clients to sign multiple originals and keep one themselves and give one to their would-be executor. The idea there was that in the absence of any objection to the court, ANY original would practically suffice. (Note that lawyers differ over whether this is a-ok or terrible, but it is an acceptable choice for people who prioritize having an "original" available at their death.)

Respectfully, a lawyer's expertise is writing an enforceable will that captures the client's wishes. The client's (or their executor's) job is safeguarding it properly.
posted by AgentRocket at 12:46 PM on December 2, 2021 [1 favorite]

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