A fictitious Seattle couple, Sally and Mary, had cohabitated together for 15 years. One day, Sally passed away from pancreatic cancer. Mary thought, “I know Sally had a will. I’m going to search for it.” Mary searched for the will. A week after Sally’s death, Mary found Sally’s original Last Will and Testament hidden in the bottom of Sally’s sock drawer. The will was over 25 years old, and had been written before Mary and Sally had met and became a couple. Sally’s will nominated her sister Melissa as the executor. The will provided that several friends of Sally’s and family members would receive specific distributions, and then the bulk of her estate would be distributed as a charitable bequest to the American Civil Liberties Union. Mary panicked, knowing that she would not receive any of Sally’s assets. Mary knew that the house she lived in belonged to Sally. Sally had owned the house for several decades before she asked Mary to move in, and the house was titled in Sally’s name. Mary thought, “Maybe if I just shred this will and say I couldn’t find one, no one will be the wiser and I’ll be better off.” So she did.

What were Mary’s legal obligations in relation to Sally’s original Last Will and Testament? RCW 11.20.010 states:

Any person having the custody or control of any will shall, within thirty days after he or she shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his or her custody or control any will shall within forty days after he or she received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall willfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation.

Mary had custody of the original will, and had been with Sally when she died. Within thirty days of Sally’s death, Mary should have either filed Sally’s original Last Will and Testament with the King County Superior Court so it could be found or, alternatively, she should have given it to the named executor, Melissa. She did neither.

Melissa remembered that Sally had told her that she had named her as executor in her will. Melissa asked Mary if she had found the will. Mary lied and said “No.” Melissa suspected that Mary was lying, and asked her estate planning attorney if anything could be done to find it. The estate planning attorney made several requests on local attorney listservs, and found the attorney who represented Sally in her estate planning. Thankfully, that attorney had kept a copy of the Sally’s Last Will and Testament. The copy was admitted to probate. Since the process of admitting a copy of a will into probate is more involved and expensive than probating an original will, Mary could potentially be liable to Sally’s estate for these additional legal expenses if it can be shown that she destroyed the original document.

If you have custody or control of a recently deceased person’s original will, you need to follow the requirements set forth by RCW 11.20.010 in all circumstances. If you have questions, please let us know. We’ll be happy to help.

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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