What if I Can’t Find the Original Will? Using a Photocopied Will in Maryland
[Updated 10/19/23]
Wondering about registering a will in Maryland? Wills are filed with the Register of Wills after a person's death. After executing your will, it is your job to keep up with the original copy. Many people place their wills in a safe deposit box or a home safe, but for safekeeping, you also may entrust the executed will to a reliable person or your county Register of Wills.
Irrespective of your preference for safekeeping, it is critically important that your personal representative has access to the original will at your death or needless problems are created for your personal representatives and your family. So, remember to tell the person you chose to be your personal representative where the will is located and how to obtain the original copy.
What Happens When You Cannot Locate the Original Copy of a Will?
Sometimes, family members know there is an original copy of a will, but they cannot locate the will. The family searched everywhere for the original copy of the will, but the only document they located was a photocopy of the original. Will the probate court in Maryland accept a photocopy of a will?
Yes, potentially, the probate court will admit a copy of an executed will for use to probate an estate, but the associated problems with this outcome are many. According to Maryland Rule, Rule 6-153, the personal representative named in the will can petition the court for admission of a copy of a will.
In the petition, the appointed personal representative also must certify that he or she has done a diligent search for the will, but cannot locate the original. The personal representative must state that the original will is alleged to be destroyed or lost. If there is another reason, the person must explain in detail for the court to consider.
However, if the decedent was the last known person to possess the original copy of the will, the personal representative of small estate will have the burden to prove that the decedent did not destroy the will with the intention of revoking the will.
A copy of the executed will must be attached to the copy of the petition. The decedent's signature and the witnesses' signatures must be clearly visible on the photocopy.
However, if the decedent was the last known person to possess the original copy of the will, the personal representative will have the burden to prove that the decedent did not destroy the will with the intention of revoking the will.
All of the heirs at law and the legatees named in the will must sign a consent form agreeing to probate a copy of the executed will. By signing the consent, each of the heirs and legatees affirm that they believe the copy of the will is a true and accurate copy of the original will.
Unless the heirs at law and legatees are the same and would receive the same estate share under the will or intestate succession, there is an inherent conflict between the heirs of original wills and legatees which makes obtaining consent difficult.
How Can I Make Things Easier for My Family After My Death?
If your family cannot locate your will or a photocopy of your will, your estate proceeds through intestate succession. The Maryland intestate laws decide who inherits your property and in what percentages. Even if the intestate succession accomplishes your desire to distribute your estate, the intestate process can be more complex and time-consuming. And having a will where the original copy cannot be found could prove to be a costly diversion to arrive at intestate succession.
You can make things easier for your family by having a validly executed will before your death. But make sure that your will is in a safe location and that your personal representative knows where and how to obtain the original.
Talk to your family members about the terms of your will, especially if you think there could be questions about some terms. Explaining your desires to your family can help reduce the chance of disputes and arguments after your death.
Also, leave a note with the will giving your personal representative the name and contact information for your estate lawyer. If the personal representative has any issues, he or she can contact the attorney for assistance.
Contact Our Maryland Estate-Planning Attorney for More Information
If you need to draft a will or update your will, we are here to help. We answer your questions about estate planning and help you develop an estate that meets your goals and desires. Contact our Maryland estate-planning attorney today to schedule an appointment.
Maryland Wills FAQs
Do you have to register a will in Maryland?
Maryland law does not require you to "register" a will per se, but you do need to file it with the appropriate Register of Wills office after the testator (the person who made the will) has passed away. The will should be filed along with a petition for probate to initiate the probate process.
How long do you have to register a will in Maryland?
Under Maryland law, there is generally no strict deadline for filing a will after the testator's death. However, it's advisable to initiate the probate process as soon as possible to settle the estate and distribute assets according to the will. Delays in probate proceedings could complicate matters and may result in additional legal issues.
Where do I register a will in MD?
Maryland law requires you to file the will with the Maryland Register of Wills in the county where the deceased person resided. Each county has its own Register's Office or Wills office, and you'll need to submit the original will along with the necessary probate forms.
What is required for a will to be valid in Maryland?
For a will to be valid in Maryland, the testator must be at least 18 years old and of sound mind. The will must be in writing, signed by the testator, and witnessed by at least two individuals who also sign the will in the presence of the testator.
What does it mean to execute a will?
Executing a will means to carry out the formalities required for the will to be legally valid. This generally includes the testator signing the will in the presence of witnesses, who also sign the document. Execution ensures that the will meets the legal requirements and can be admitted to probate.
What if my will was executed in another state?
If your will was executed in another state but meets the legal requirements of Maryland, it is generally considered valid. However, it's advisable to consult with a Maryland estate attorney to ensure that the will complies with local laws.
Should I make a copy of my will?
Yes, it's a good idea to make copies of your will for safekeeping and for sharing with trusted individuals like a surviving spouse and your executor. However, remember that only the original will is usually accepted in the probate process.
Where should I store my will?
Your will, like all legal documents, should be stored in a secure location, such as a safe deposit box or a fireproof safe at home. It's also advisable to inform your executor or a trusted family member about the location of the will.
How do I look up a will in Maryland?
In Maryland, wills become public records once they are filed for probate. You can search for a will at the MD Register of Wills office in the county where the deceased person resided. Some counties may also provide online access to probate records and wills (public records) there.
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