A common question that an estate planning attorney is asked is how to obtain a copy of a last will and testament. First of all note that you cannot ask to see a copy of a living person’s will – this is because while the person is still alive their will is considered private personal property and no one has the legal right to demand to see it. And second of all, whether or not you can obtain a copy of a deceased person’s will depends on if the will has, or has not, been filed for probate.
How to Obtain a Copy of a Will Filed for Probate
Since in general all wills become public court records once they have been filed for probate, a telephone call, fax or letter to the appropriate probate court where the will has been filed will allow you to receive that court’s specific procedures for obtaining a copy of the will.
Side note: How do you determine the appropriate probate court where the will has been filed? A will should be filed in the county where the deceased person lived at the time of his or her death and/or in any other county where the deceased person owned real estate. You can use the following website to locate the correct name of the county by plugging in the name of the city where the deceased person lived or owned real estate: City - County Search.
Once you have located the appropriate county, usually the steps involved in obtaining a copy of a will from the probate court will include the following:
- Appearing in person and asking for a copy of the will, or making a written request by fax or mail if applying in person isn't feasible.
- Paying a copying fee for the number of pages that the will contains. These fees usually range from $.50 to a few dollars per page.
- Providing a self-addressed, stamped envelope for mailing the will copy if the request is not made in person.
What if you're not sure if the will has actually been filed for probate? Then determine the name of the county where the deceased person lived at the time of death and check online to see if the probate court in question has copies of its probate dockets online. Since many courts do have all of their dockets available online, you can simply search by the name of the deceased person to determine if a will has been filed or a probate estate has been opened. Here is a step by step guide to locating probate documents online: How to Locate Online Probate Court Dockets and Request Copies of Documents. If the court's dockets are not available online, then make a telephone call or send a fax or letter to the appropriate probate court and ask whether a will in the deceased person's name has been filed. If so, then proceed as discussed above. If not, then see below.
How to Obtain a Copy of a Will Not Filed For Probate
If you have determined that the deceased person's last will and testament has not been filed for probate, then unfortunately it is not a public court record and so who can see it is addressed by applicable state law, which usually means only the named beneficiaries, personal representatives and guardians for minor children (if applicable) will be allowed to see it. So this creates a dilemma - how will you know if you are, or are not, named in a deceased person's will if the person who has possession of the will won't let you see it? If this is the case, then you should be able to force the person in possession of the will to file it with the appropriate probate court through a legal action filed in that court. Note that in some states it is actually a crime for a person in possession of an original will not to file it with the appropriate probate court after the person in possession of the will learns that the person who made the will has died.
Aside from this, although you may be named in a will as a beneficiary, the will itself may not govern the distribution of the deceased person's property at all and so the will can become a useless piece of paper even if it is filed with the appropriate probate court. How can this happen? If all of the deceased person's property consists of non-probate assets, such as joint deeds and accounts, TOD accounts and POD accounts, life insurance and retirement accounts, including IRAs and 401(k)s, then all of the deceased person's property will pass directly to the other joint owners or the named beneficiaries – in other words, the deceased person's property will pass completely outside of the terms of their will and so it will not matter what the deceased person’s will says. If this is the situation, then the only recourse potential beneficiaries of the will have is to sit down with an estate and trust litigator to determine all of their legal rights and options.