When it comes to administering an estate, it makes a big difference if someone dies testate (with a will) or intestate (without a will). But how do you actually know if the deceased had a will? And if you find one, how do you know it's the most recent?
If you assume the deceased died intestate, but then halfway through the administration a valid will surfaces, this creates a logistical nightmare and possibly liability. Below are four ways to find out if the deceased had a will.
1. Will Registries
In provinces where there is an official Wills Registry, it's easy to determine conclusively if someone had a will. In British Columbia, for example, the Vital Statistics Agency maintains the province's official Wills Registry. Searching this registry is required before probate will be granted.
There is no official Wills Registry in Ontario. Instead, estate practitioners and administrators must take steps to show that they made an effort to find out if there was a will. These steps do not provide a definitive answer, so it's important to document what efforts were taken in case you're challenged later on.
2. Check the Court
Some individuals choose to store their wills with the Superior Court of Justice, although it's not mandatory for testators to do this. If you are confident that someone made a will but you just can't find it, it might be worth checking at the court.
There are also some private firms and businesses that provide will storage services, and it may be worthwhile checking these sources as well.
3. Publish a Knowledge of a Will Notice with NoticeConnect
A 'Knowledge of a Will Notice' is a legal notice sent out to estate practitioners asking if anyone knows about a will made by a particular deceased individual. The notice invites anyone who has knowledge of a will to contact the lawyer who published the notice.
If no one responds to this notice, then the estate administrator can be more certain that there is no outstanding will that could surface later. These notices can be published with NoticeConnect.
4. Law Associations
Another common way to track down outstanding wills is to get in touch with your local law association. Different associations offer different services. Some will send out an email to their estates practitioners asking if anybody knows about a will. Others are experimenting with tech solutions. The County of Carleton Law Association (CCLA) created WillCheck, an online wills registry.
The Bottom Line
If you're in a jurisdiction without an official, mandatory wills registry, then it's important to make an effort to find out if the deceased had a will (or a more recent will than the one you have). Documenting the steps taken is an import part of the probate process and can protect you from potential liability down the road.