Why Losing a Will Can Be Worse than Losing Your Car Keys

Losing your car keys is no fun. If you lack a spare, you’ll need to call a locksmith or roadside assistance service such as AAA to gain entry into your vehicle. That will be a time-consuming hassle and an unplanned expense. And there’s the cost of replacement, which can run from $50 for a very basic metal key up to $1,000 for a key fob with an LCD display. Also, losing your car keys inevitably occurs at the worst possible moment. Leaving your house for a big meeting? Hiking through remote wilderness? Departing for a wedding? Yep. That’s when it’ll happen. If losing your car keys is that bad, how can losing the signed original of your Will possibly be worse?

We previously wrote about the importance of safely storing an original. According to RCW 11.20.070(2),  “[t]he provisions of a lost or destroyed will, or an electronic will, custody of which has not been maintained by a qualified custodian, must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will.” What exactly does that mean?

With certain exceptions, RCW 11.12.020(1) requires that “every will shall be in writing signed by the testator or by some other person under the testator’s direction in the testator’s presence or electronic presence, and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence or electronic presence of the testator and at the testator’s direction or request.” The court will generally want to see a declaration from the person seeking to be the Personal Representative explaining that, despite a diligent and thorough search, the original Will was not found. The court will also want to see a declaration from at least one of the Will’s witnesses confirming the copy of the Will that includes their signatures is authentic. Are the witnesses alive? If so, can they easily be located? Are they still competent? Are they willing to cooperate? Who knows. It can require much research and communication to answer these questions and prepare the appropriate pleadings to submit to the court. Sadly, this work is often much more time-consuming than addressing the lost key fob and tends to be much more expensive.

We’ve previously provided some suggestions about how to store an original Will. Please be careful when storing your original estate planning documents.