What should we do if we can’t find our mother’s will?

Question

I can't find my mother's will. She died 3 years ago. My sisters and brother never went to probate because we didn't see a need to and still don't but my oldest sister wants to see the will and I can't find it. I would also like to have the property taxes in my name since I live in the house.

Jeffrey Strickland · Answer

The property taxes are listed in the name of the owner. If the property is listed in your mom's name, then a probate estate needs to be opened. If no will can be found, then it will be handled under intestate succession law.

Victor Waid · Answer

Sounds like you still need a probate to be able to hold title in your name and to obtain the tax assessment statements to you. Otherwise title is not clear, and may be a problem in the future when you want to sell the property. Obtain the assistance of a probate lawyer.

Norman Green · Answer

Do you know that she had a will?  Do you have a copy showing signature? Do you know who her lawyer was?  Does he or she have the will or a copy?  Sooner or later you will need to go through probate, or you won't own and may not be able to sell the house.

Edwin K. Niles · Answer

Wait a minute. There is real property in Mom?s name and there is no probate?  How do you ever expect to pass good title? It's possible to probate a lost will, but if the will treats you all equally, it doesn't matter.  You can open a probate without the will.

Brian Haggerty · Answer

So the house is still owned by your deceased mother, is that what I'm reading? I think that's your reason to go through probate, isn't it? If you can't find the original of your mother's will (answer is from Oregon) then there is a presumption that she destroyed it, intending that it be revoked. If you can't find the will, and can't overcome that presumption with evidence, then she died without a will.

James Weiner · Answer

If the house is not in your name also with a "right of survivorship" your mom's estate must be probated Otherwise Do you remember if the will had unequal distribution of the estate? if so you need to find the will..  If you cannot find the will and the house is not in your name with a right of survivorship your brother and sisters own an equal share of the house and can force its sale.

James Frederick · Answer

You may have a huge mess on your hands. Who owns the home, at this point? You live there, but if the property is still titled in your mom's name, then you have a potential property tax nightmare on your hands and there is a very good chance that the insurance company will deny any claims you might ever make. There is also the potential that your siblings could force you to move.  More information is needed to determine how best for you to proceed, but I would strongly recommend your meeting with an attorney to review your situation with.

Mark T. Peters · Answer

Which is why you needed to go to probate.  The house was in your mother's estate and should have been sold, creditors paid and the remainder split among the children.  In order to get the taxes in your name, you need to have the property transferred to your name and you can only do that if you probate the estate.

Bernard H. Greenberg · Answer

It may be possible to have the Court approve a copy of the Will as the original. A Colorado statute allows this in the Court's discretion after a hearing. Probate is required on your Mother's estate if she died owning real estate such as her house in her own name upon her death.  For more information, contact an attorney specializing in estate administration.

Georges Shers · Answer

In California, you can not transfer title to a house without a probate proceeding. Likewise you need probate to have the property taxes billed to you. The county would have refigure the assessed value of the property on your mother's death so there may be a penalty on not informing them timely. You might be able to file for a small estate proceeding but I doubt it if the house is in most places in California because of the limitation on value. You need to read some books on probate written for lay people, such as those by Nolo Press, so you know how to handle the probate. Try again to locate the Will; if she had an attorney prepare it, they might have a copy. You may need an attorney to help you out but try to be appointed personal representative of the estate to avoid most probate fees.

Thomas Edward Gates · Answer

If you cannot find the will in the house, you can run an ad in the state BAR magazine looking for a lost will.  If none comes forward, you can probate the estate intestate (without a will).  This will permit you to transfer title and be on the county's roles for the property tax.

Dara J. Goldsmith · Answer

You need to speak with an attorney.  If the house is in your mom's name it needs to go through probate.  You have a lot of issues here.  To try to find the Will,  check her files, contact attorneys she may have retained, look in the check book etc.  if no Will and assuming she was not married at death, the estate will go equally to all children.

Julie Mains · Answer

Did you lodge the will with the Court 3 years ago?  It does not sound like it.  You will need to probate the estate without the will if you cannot locate it and did not lodge it.  Or you must file a special motion with regard to the house but absent the will, the estate will go to probate to transfer the property which will then transfer the taxes.

Randall Romei · Answer

If there is no will then your mother's assets are distributed in accord with the statute on descent and distribution.  If the deceased had no spouse but did have children when she died all of her estate is evenly divided amongst her children, your mother's house included.  A probate will have to be opened to transfer the house to the new owners.  If the house was titled in joint tenancy then it would transfer directly to the surviving joint tenant without probate.

John Brennan · Answer

Keep looking and speak with her attorney, perhaps he has a copy or the original.  You may will have to go to probate to transfer the house. See an attorney, generally the longer you delay the more expensive it will become.

Christine James · Answer

Can't transfer taxes until you transfer title which likely can't be done without probate. The lost will is tough. Hopefully it show up.

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What should we do if we can’t find our mother’s will?

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