One of the most common challenges that families face when a loved one passes away is the uncertainty around their estate planning documents. It's not uncommon for individuals to misplace or fail to disclose the location of their will or trust, leaving family members and heirs unsure of how to proceed. If you find yourself in this situation, it's important to understand the steps you can take under California law to locate and manage the estate when the necessary documents are missing or cannot be found.

The Importance of a Will or Trust
In California, a will or trust is crucial for directing how a person's assets should be distributed after their death. A will provides instructions for the distribution of property, the naming of an executor, and can also specify guardianship for minor children. A trust, on the other hand, can help avoid the probate process and allow for more privacy and control over asset distribution.

Without a will or trust, the estate is considered intestate, which means California's laws of intestate succession will govern how assets are distributed. However, if you can't locate your loved one's will or trust, don't panic—there are specific steps you can take to try to find it and ensure their wishes are honored.

1. Search Thoroughly for the Documents
The first step when you cannot find a loved one's will or trust is to conduct a thorough search. Sometimes these documents are placed in unusual locations or secured in a safe deposit box, file cabinet, or locked drawer. Here's where to look:

• Safe Deposit Box: Check if your loved one had a safe deposit box at their bank. Banks often require proof of identity and documentation to access the box, so make sure to have any necessary paperwork in order.

• Home Office or Personal Files: Wills and trusts may be stored in personal files, such as a desk or filing cabinet. Check for any labeled folders or boxes that might contain estate planning documents.

• With an Attorney or Financial Advisor: Many individuals work with an estate planning attorney or financial advisor to draft and store their will or trust. Contact the attorney who helped with their estate planning, as they may have a copy on file.

• Online Services: If your loved one used an online service for estate planning, such as LegalZoom or Rocket Lawyer, their documents may be accessible through those platforms.

2. Investigate the Probate Court
If the will cannot be located and there is reason to believe one existed, it may have been filed with the probate court. In California, it is common for individuals to submit their will to the court for safekeeping, and in some cases, the executor may have filed the will with the court upon the person's death.

The probate court will typically require a copy of the death certificate before allowing you to inquire about the existence of a will. You can visit the probate court in the county where your loved one lived to ask if a will has been filed. If a will is found, it will be admitted into probate, and the estate administration process will proceed according to the instructions in the will.

3. Consider the Possibility of a Holographic Will
California law allows for a holographic will, which is a will that is handwritten and signed by the testator (the person who wrote the will). If a formal will cannot be found, it's possible that your loved one may have written a handwritten will instead. A holographic will does not need to be notarized, but it must be entirely in the handwriting of the deceased person.

If a handwritten will is found, it must be filed with the probate court for validation. The court will review whether it meets the legal requirements, such as being dated and signed by the testator. If valid, it will serve as the governing document for the estate.

4. Seek Out the Trustee if a Trust Was Used
If a living trust was part of your loved one's estate plan, it's possible that the trust document has been kept separate from their will. In this case, the person appointed as the trustee may have possession of the trust document or knowledge of its whereabouts. The trustee is responsible for administering the trust and ensuring that the terms are carried out according to the deceased person's wishes.

If a trustee has been named, contact them directly. If no trustee has been named or the trustee cannot be located, you may need to take steps to appoint a successor trustee or to initiate the probate process.

5. Start the Probate Process if Necessary
If all efforts to locate a will or trust fail, you may need to initiate the probate process in California. Probate is the legal process by which the court oversees the distribution of a deceased person's assets. In the absence of a will or trust, the court will follow California's laws of intestate succession to determine how the deceased person's property will be divided.

The probate court will appoint an administrator to handle the estate, and this person will be responsible for gathering the deceased's assets, paying any debts or taxes, and distributing the remaining assets to heirs according to state law.

6. Work with an Estate Planning Attorney
Navigating the process of locating a missing will or trust can be challenging, and it's advisable to seek legal counsel if you are unsure how to proceed. An estate planning attorney can help guide you through the process, assist with filing for probate, and advise you on your rights as an heir or beneficiary.

An attorney can also help if you encounter issues such as potential disputes over the validity of a will, unclear instructions, or conflicts between heirs. If you find that a will exists but is contested, or if you suspect there may be fraud or undue influence involved, an attorney can help you resolve these issues through legal channels.

Final Thoughts
Not being able to find a loved one's will or trust can feel overwhelming, but there are steps you can take to search for the documents, initiate probate, and ensure the estate is managed according to the deceased's wishes. Whether you're dealing with a will, trust, or the absence of any formal estate planning documents, it's important to stay organized, patient, and seek legal guidance when necessary.

If you need assistance locating a will or trust or navigating the probate process, I recommend reaching out to an experienced estate planning attorney to help you make sense of the situation and guide you through the next steps.

LEGAL DISCLAIMER
This article is intended for general informational purposes only. It should not be construed as legal or professional advice. If you require legal assistance, please contact an attorney or other qualified professional advisor. No attorney-client relationship is formed by the transmission of this information. The choice of an attorney or other professional is an important decision and should not be based solely upon advertisements or blog posts.