Are lawyers required to keep copies of wills they draw up? What if the lawyer can't find the original after I left it with him?

Asked over 4 years ago - Bessemer City, NC

Me and my husband had our wills drawn up in 1988. the lawyer said he would file them in his safe. My husband passed away in February, 2010. Now, the lawyer says he can't find the will. What should I do? I only found a copy of my husband's will.the lawyer can't find my will either.

Attorney answers (3)

  1. Cheryl K. David

    Pro

    Contributor Level 15

    Answered . From your question, it appears that the will is lost and the attorney can't find the original. There is an exception in North Carolina in certain circumstances where a will has been lost and destroyed. It is called an Application for Probate of Lost or Destroyed Will. If the attorney held the original and can't find it I think that would qualify for this exception, if the attorney will state that this is what happened, Hopefully he or she will file this application for you. It needs to be accompanied by a death certificate and a conformed copy, as well as a valid excuse. Affidavits of the subscribing witnesses will also have to be filed.

    Since your will is also missing. I would ask the attorney to have you sign a new will so that your family doesn't have to go through this same mess when you pass away.

    Also, I think you know this now, but the rest of our readers should take this situation as a valuable lesson. Keep your original documents in your care and keep them safe. Also, make sure that your family knows where to find them when you are gone.

    Best luck with this process.

    Very truly yours,
    Cheryl David
    Law Offices of Cheryl David
    5606 W. Friendly Avenue
    Greensboro, NC 27410
    (336)547-9999
    cheryl@cheryldavid.com

  2. Pamela A Wilson

    Contributor Level 14

    Answered . Was the copy executed and witnessed or a photocopy of the executed and witnessed will? If so you may be ok. Does the attorney recall preparing it? Was it notarized? Was there a prior will that was similar which was executed and witnessed if required in your state? If there were witnesses who are still living and they can be located they can authenticate the document if necessary. Your state's laws will control and I don't practice there.
    Disclaimer: It is impossible to evaluate a legal problem without a comprehensive legal consultation and review of all the facts and documents at issue. Consequently, this response does not constitute or establish an attorney-client relationship but is offered for general informational purposes only. Laws differ from state to state and each case turns on facts specific to the case and parties thereto, thus this answer does not constitute legal advice, and should not be relied upon as anything more than a starting point or suggestion that the questioner seek professional assistance from a practitioner in your state or county/parish, practicing in your area of law.

  3. Janet Lee Brewer

    Pro

    Contributor Level 17

    Answered . I'm sorry about your husband's death. In California, we are not required to keep our clients' documents (I usually give the originals to my clients) ... but if we did hold onto them for "safekeeping", we cannot destroy them. If we cannot locate the client and we want to "purge" old files, we are required to file the original with the Court. I don't know if NC has similar rules or not.

    In some states it is possible to probate a photocopy in circumstances such as the one you describe.

    The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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