Will locked away in a dead person’s house

Question

A dear friend of mine obtained all of my legal information and made a will naming me her executor and sole beneficiary. Unfortunately, she died in her home in Mesa, Arizona, and her will was left in her locked house. What can I do to get the will out of her home so legal proceedings can begin?

Answer 1

You have a few options.

Option One

One, if you know who is the personal representative (a.k.a. executor) named in the will (and the question says that you do), the personal representative has certain powers before actually being appointed that apply retroactively:

Arizona Revised Statutes 14-3701. Time of accrual of duties and powers

The duties and powers of a personal representative commence on appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent's body, funeral and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.

This authority would probably extend to breaking into the house to get the will and stabilize the situation in the house. Of course, if you can't find it in the house, you have a problem.

Option Two

Another option is to have an intestate estate opened, as if there was no will, with the person entitled to priority in the absence of the will appointed as personal representative (a.k.a. executor). See Arizona Revised Statutes § 15-3203. Then, amend the petition in the case if a will is found to reflect the fact that a will is discovered.

But, this may require the cooperation of family if you are only a friend, and that may pose a sticky situation if the family is not cooperative. This would take several days (after the mandatory 120 hour waiting period from the time of death).

Still, there is some protection in this scenario because anyone finding a will of a deceased person has a legal duty to present it to a court. Arizona Revised Statutes § 15-2516.

Custodian of will; duties; liability

A. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate or, if none is known, to an appropriate court.

B. A person who wilfully fails to deliver a will as required by this section is liable to any person aggrieved for any damages caused by this failure.

C. A person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.

Option Three

A third option would be to bring a "petition for formal probate" alleging that you have copy of the will, and that there is good cause why the original can't be produced at this time. But this would probably take several weeks and an evidentiary hearing, and isn't a sure thing. This is because a will is like a dollar bill, a copy isn't as good as the original. If an original will can't be located, there is a strong, but rebuttable, presumption that the will was revoked by physically destroying it.

Option Four

Arizona is actually one of the only U.S. states that allows for electronic wills, but it is unlikely that your deceased friend had one. But, if you had an electronic copy of an electronic will for your friend, that would solve the problem.

Option Five

It is relevant if the body is still in the house or not.

If the body is or might be in the house, the police can enter to make a welfare check and the corner can enter to deal with the body. Either of these officials might let you gain entry to the premises, even though they have no duty to do so.

Answer 2

I don't know how that is in the US, but in Europe, if it is assumed (or even certain) that somebody is lying dead in a house, one must call the police. They will open the door (by force, if needed). They then call a doctor to confirm the death. If in doubt, they will start an investigation whether the death was natural, too.

If the person is really deceased, the police will try to find out whether he has written a will and whether he has any still living relatives. There are special government jobs taking care of this. Obviously, their task will be simplified if they know that a will exists and that you are the beneficiary. So if you just call the police at the location of the deceased's last living place, they will most likely help you out.