Don't Lose Your Will - Seriously, Don't Misplace Your Last Will and Testament

Law Office of

Michael J. Fleck, P.C.

-Illinois Legal Topics-

by Michael J. Fleck, Esq.

WARNING: THIS IS NOT LEGAL ADVICE. CONSULT YOUR ATTORNEY FOR INFORMATION CONCERNING YOUR PERSONAL SITUATION. This is a series of discussions on legal issues in Illinois. Topics covered include Real Estate, Estate Planning and Administration (wills, trusts, probate and guardianship), Business Law, Employment and Civil Litigation.

Thursday, September 22, 2016

Don't Lose Your Will - Seriously, Don't Misplace Your Last Will and Testament

(And Make Sure it Gets Filed When the Time Comes)

by Michael J. Fleck, Esq.

Law Office of Michael J. Fleck, P.C.

Huntley, Illinois

www.flecklawoffice.com

If you have bothered to prepare a Will, Trust Agreement, Powers of Attorney, Advanced Directives and other estate planning documents, it is important that you keep and maintain the originals in a safe location. This can be especially critical with a Will.

FILE THE ORIGINAL WILL WITHIN 30 DAYS OF DEATH

WHETHER OR NOT FORMAL PROBATE IS INTENDED

In Illinois, when a person dies, the Probate Act has a provision that there is a duty to file the Will. Immediately upon the death of the person who made the will, any person who has the will in his or her possession shall file it with the clerk of the court of the proper county. See, 755 ILCS 5/6-1. This section goes on to state that any person who wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for the period of 30 days after the death of the testator is known to him, the person so offending, on conviction thereof, shall be sentenced as in cases of theft of property classified as a Class 3 felony by the law in effect at the date of the offense.

Clearly, this sounds terribly harsh. The intent of this section is to make sure that the final will of a decedent is secured with the Office of the Circuit Clerk, so that in the event it is necessary for Probate, the unaltered original is there to be considered against other wills, to ensure that it complies as a valid will, and that the provisions of the will are carried out.

Occasionally, clients will come in with a will from a loved one well beyond the thirty days after the death of the testator. They usually are unaware of the obligation to file the original within 30 days of the date of death, and panic when they fined out that it can be a Class 3 felony. We will assist in filing the Will, and they can rest assured that unless there was clear intention to hide the will, alter or destroy it, no charges will be brought.

The statute is intended to go after those, for example, who may find the Will, discover that they are disinherited or are not happy with their share, and either destroy it or change it to better suit their needs.

WHAT IF THERE ARE MORE THAN ONE ORIGINAL WILL?

In the event that one finds more than one original Will, it is highly recommended that all original Wills be filed. The reason for this is that although the language of a Will and the Act suggest that the last valid Will is the controlling document, in the event that there is a challenge to that last Will (such as incapacity of the testator at the time the Will was made, or that it was invalid, or signed under duress), then the Will prior to that may be considered the last valid Will.

IF YOU MAKE A NEW WILL, DESTROY THE OLD ONES

Also, it's good practice to destroy all prior Wills in favor of the last Will, so that loved ones may file only the Will that's intended. Indeed, if a loved one finds an old Will and files it, unaware that there exists a valid newer Will, this could create real problems with how the estate is administered.

WHAT IF I CAN'T FIND AN ORIGINAL WILL, BUT I HAVE A COPY?

It is presumed that if an original Will cannot be found, then the testator intended to revoke it. Therefore, although it is possible to file and probate a copy of a Will, the person who is trying to do so has to overcome the strong presumption that the Will was revoked. AS thoroughly discussed in In re Estate of Strong, 194 Ill. App. 3d 219, 226, 141 Ill. Dec. 155, 160-61, 550 N.E.2d 1201, 1206-07 (1990):

The law is well established regarding lost or missing wills. It is established: "Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator's death." (In re Estate of Moos (1953), 414 Ill. 54, 57, 110 N.E.2d 194, 195, noted in In re Estate of Millsap (1979), 75 Ill. 2d 247, 250, 388 N.E.2d 374, 376-77.)

(See also, In re Estate of Weir (1983), 120 Ill. App. 3d 18, 20, 458 N.E.2d 134, 136; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57-58, 378 N.E.2d 800, 802.) Factors to be considered in addressing the rebuttal of the presumption include evidence as to statements from the testator that he did not intend to revoke the will, evidence that he entertained a kind and loving attitude toward the proposed beneficiary under the will up to the time of death, and evidence of other individuals' access to the will prior to death. (See, Moos, 414 Ill. 54, 110 N.E.2d 194; In re Estate of Morgan (1945), 389 Ill. 484, 59 N.E.2d 800; Holler v. Holler (1921), 298 Ill. 418, 131 N.E. 663; In re Estate of Deskins (1984), 128 Ill. App. 3d 942, 471 N.E.2d 1018; Jackson v. Jackson (1971), 132 Ill. App. 2d 66, 268 N.E.2d 62.) In cases where the issue is raised whether some person has unlawfully destroyed a missing will, however, it will not be presumed that a missing will has been destroyed by any other person, without the knowledge of or authority of the testator, although such person may have had the motive and the opportunity, as that would be presuming a crime. Moos, 414 Ill. at 60, 110 N.E.2d at 197; Holler, 298 Ill. at 432, 131 N.E. at 669; St. Mary's Home for Children v. Dodge (1913), 257 Ill. 518, 526, 101 N.E. 46, 49.

Our supreme court has noted that because the evidence with respect to any rebuttal will vary from case to case, other cases "constitute little assistance in [making] the determination" whether the presumption has been overcome. (Morgan, 389 Ill. at 487, 59 N.E.2d at 801; see also Moos, 414 Ill. at 60-61, 110 N.E.2d at 197.)

Therefore, one can see that to lose an original Will can be a rather large problem for loved ones and for the proper administration of one's estate.

WHAT CAN ONE DO TO ENSURE THE ORIGINAL WILL IS NOT LOST OR DESTROYED, AND IS PROPERLY FILED?

Here are some suggestions on ensuring that the Will is safe and secure, and can be found at the right time and timely filed, without loss or alteration:

• Make an instruction sheet for a trusted loved one on what to do in the event of your death. This can be a note or a checklist, and can advise them where the original Will is located, what date it was made, and if an attorney assisted, who that attorney is and how that attorney may be contacted. NOTE: Some lawyers will keep the original Wills for their clients in their safe. While this has been a common practice over the years, and there is strong debate and good arguments for keeping client Wills or for not keeping them, it is my opinion that this practice is trending toward giving the client the Will and therefore, it is the client's responsibility to ensure that it is safe and secured.
• Consider giving a note to your attorney as to where the original Will is located, that can be placed in your client file.
• Keep the original in a sealed envelope, identifying it as the Last Will of [Testator].
• Put the Will in a safe location, such as a safe, fireproof locked storage, safety deposit box, or other location.
• If you have a copy, keep that in another secure location.
• Consider a sticky note on the envelope indicating that the Will must be filed within 30 days of the date of death in the County where the decedent resided at the time of death. NOTE: This may be a different requirement in other states under that state's Probate Act.
• Also, bear in mind that only trusted persons should have this information. Sadly, some may not honor your wishes, or be disappointed with what you have in the Will. Another consideration is to have more than one trusted person have that information such that there is a "check and balance" between these two to make sure that your Will is filed properly and not altered, lost or destroyed.
• Naturally, these are just suggestions. Ultimately, you need to do what you think is best for your particular situation, and as always, consult your attorney for more information.

-Michael J. Fleck is an attorney in Huntley, Illinois with the Law Office of Michael J. Fleck, P.C.

WARNING: THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE.

CONSULT YOUR ATTORNEY FOR INFORMATION

CONCERNING YOUR PERSONAL SITUATION.