The Crucial Role of Will Accessibility and Maintenance in Estate Planning


Creating a will is an essential responsibility for individuals with assets, as it clearly outlines how their estate should be distributed after their passing. The role of a will goes beyond merely drafting it; it is also crucial to ensure its accessibility and safekeeping after one’s death. If the original, signed copy of a will cannot be found, there is a risk it could be presumed to have been intentionally destroyed or revoked by the testator. This presumption can lead to complicated legal challenges and disputes among potential heirs. To help navigate these potential issues, this article explores the intricacies of will accessibility and maintenance, drawing insights from a hypothetical legal case to illustrate key points and offer guidance.

Estate Planning and Will Maintenance: A Hypothetical Scenario

In a hypothetical situation, an elderly individual facing family estrangement responsibly drafts a will with the help of a legal expert. Acknowledging the need for ongoing revisions, this person enrolls in a maintenance program that allows for regular updates to estate documents at no extra cost. The individual makes several updates to their will, with the last occurring just before passing. The active maintenance program until their death suggests a continued interest in maintaining current estate plans.

The Challenge of a Lost Will

After this individual’s death, the estate executor encounters a significant problem: the final will is nowhere to be found. The individual’s home is in disarray, with scattered documents and signs of pest infestation, complicating the search for the will. The executor can only produce a photocopy for the probate process, leading to a legal dilemma.

Overcoming Legal Presumptions about Missing Wills

Legally, if a will is unlocated, it is often presumed to have been revoked by the creator. However, this presumption can be countered with substantial evidence. In this case, the disorganized state of the home provides a reasonable explanation for the will’s absence. Additionally, the individual’s enrollment in the maintenance program and no evidence of intending to revoke the will suggest a commitment to the last version.

Family Dynamics and Their Impact on Estate Distribution

Family relationships play a crucial role in this scenario. The individual explicitly disinherits their children in the latest will update, indicating an intention to avoid passing the estate through intestacy (the default distribution method when no will exists). This intent is reinforced by testimony from the legal expert that the individual consistently preferred charities as beneficiaries.

Court Analysis and Decision

In this hypothetical case, the court considers the unique circumstances and evaluates all evidence. The disorganized home, the maintenance program subscription, and the lack of indication of a change in testamentary intentions collectively weaken the presumption of intentional revocation. As a result, the court ruled against the children who hoped to inherit through intestacy.

Ensuring Will Security and Clarity

This example underscores the critical importance of both secure storage and transparent communication regarding wills. It is imperative for individuals to store their wills in locations that are not only secure but also known and easily accessible to relevant parties, such as executors and beneficiaries. This practice is essential to prevent potential legal disputes that may arise from a will’s misplacement or loss.

Furthermore, clear and proactive communication about the existence, location, and contents of the will with executors and beneficiaries is crucial. These measures, when diligently implemented, can substantially minimize the risk of misunderstandings and legal challenges that often occur in the probate process. By taking these steps, individuals can ensure that their final wishes are not only clearly understood but also respected and executed in accordance with their intentions, thereby honoring their legacy and providing peace of mind to all involved.

If you are a Legacy client and have questions, please do not hesitate to contact your Legacy advisor. If you are not a Legacy client and are interested in learning more about our approach to personalized wealth management, please contact us at 920.967.5020 or

This newsletter is provided for informational purposes only.
It is not intended as legal, accounting, or financial planning advice.

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