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Navigating the Challenges of Locating a Will: Essential Procedures and Legal Responsibilities

Proving a negative regarding a person's will can be challenging. This guide outlines the procedure to locate a will through diligent searches in homes, offices, and safe deposit boxes, referencing relevant statutes from Probate and Estates Codes. It details actions to take both with and without court orders, the role of significant individuals and custodians, and the responsibilities of the Clerk of Court. Understanding these processes is crucial for executors and beneficiaries to fulfill their legal obligations and ensure that a decedent's wishes are honored.

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Navigating the Challenges of Locating a Will: Essential Procedures and Legal Responsibilities

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Presentation Transcript

  1. LocateWill

  2. The Problem • Hard to prove a negative, that is, that a person died without a will. • Thus, must perform due diligence to locate the will.

  3. 1. Home and Office

  4. 2. Safe Deposit Box • Procedures in: • Probate Code §§ 36B-36F • Estates Code Chapter 151 • Without court order • With court order

  5. 2. Safe Deposit Box • Without Court Order • Discretionary with bank

  6. 2. Safe Deposit Box • Without Court Order • Persons who may ask: • Spouse • Parent • Adult descendant • Named executor who can prove it with a copy of will

  7. 2. Safe Deposit Box • Without Court Order • Delivery of found documents: • Will = clerk of court with jurisdiction and venue, ornamed executor • Burial plot deed or burial instructions = person inspecting • Life insurance policy = any named beneficiary

  8. 2. Safe Deposit Box • With Court Order • Court designates person who may inspect • Examination occurs in presence of this person AND the judge or the judge’s agent

  9. 2. Safe Deposit Box • With Court Order • Delivery of found documents • Will = clerk of court with jurisdiction in same county as ordering judge • Burial plot deed = person designated in court order • Life insurance policy = any named beneficiary

  10. 3. Significant Individuals • Duty of Custodian • PC § 75 • EC §§ 252.201-252.204

  11. 3. Significant Individuals • Duty of Custodian • No duty to probate will

  12. 3. Significant Individuals • Duty of Custodian • No duty to probate will • Duty to deliver to court with jurisdiction

  13. 3. Significant Individuals • Duty of Custodian • No duty to probate will • Duty to deliver to court with jurisdiction • If failure to deliver, may be arrested and imprisoned until person delivers and is liable for damages.

  14. 4. Clerk of Court • All counties where decedent lived • PC § 71 • EC §§ 252.001-252.153

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