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Opening Probate with Copy of Will

If you can only find a copy of the will, keep looking for the original. If a lawyer prepared the will, call the lawyer and see if he or she has the original. If you have looked through all the belongings and obvious places (and nonobvious places), you should review the copy and determine whether it would pass the decedent’s estate in the same way that Washington’s default law would pass the decedent’s estate. For instance, many wills pass everything to the surviving spouse, but if the surviving spouse is not living, then to the surviving children equally. Washington’s law of intestate succession (RCW 11.04.015) does the same thing. Therefore, the estate will pass the same way whether the decedent had a will or not. In that case, you might consider proceeding with a no will probate rather than going through the effort of trying to have copy admitted to probate.

Legal Standard

If you do not have an original will, a legal presumption exists that the testator wanted it revoked. To admit the copy of the will to probate, you must be able to rebut this presumption with clear, cogent and convincing evidence that the testator did not intend to revoke it and that the copy admitted was validly executed and is a copy of the true will. Preferably, the witnesses would include the people who witnessed the will and the testator's attorney. But you will also need some evidence that the decedent didn't intend for the will to be revoked. This proof can be provided by live testimony at the scheduled hearing or preferably by affidavits or declarations filed with your Petition. Whether live testimony is presented, the affidavits or declarations of the testimony must be filed with the court, according to RCW 11.20.070. You will likely need an attorney to help you with this complicated issue.

What about the Safe Deposit Box?

Some people leave their wills in their safe deposit box at their bank. This is generally a nice, safe place to keep a will. However, upon the death of the owner, you have a chicken and egg problem. To get into the box, you need Letters Testamentary. But to get Letters Testamentary, you need the will. To solve this problem, you need a lawyer. King County has a local rule (KCLR 98.04(d)) that allows your legal counsel to gain access to a safe deposit box of a deceased person for the sole purpose of seeing if there is a will there. If you have exhausted all other avenues and know there is an original will somewhere, you should contact a lawyer for help.














Photo by adrian on Unsplash

Scheduling a Court Hearing

If you have decided you need to admit the copy of the will to probate, you should consider hiring an attorney to help you through this process. But if you insist on doing this yourself, you will need to follow these steps to schedule a hearing:

First, complete all the documents you will need to file and serve on the heirs and beneficiaries, which should include at a minimum the Case Designation Coversheet, the correct Ex Parte Notice of Court Date for Kent or Seattle, Verified Petition, Proposed Order, Death Certificate, Notice of Request for Nonintervention Powers, and Declaration of Mailing. These pleadings can be found on the Documents page. Your Verified Petition will need to address the issue of the lost will and how you intend to prove the copy of the will. You will need declarations or affidavits from your witnesses. Your proposed Order should attach the proposed will as an Exhibit and the Order should reference the Exhibit.  

Next, file the Petition and Case Designation Coversheet and pay $240 at the Clerk’s office to get the case filed and to get a case number. Now that you have the case number, you can put that number after "No." in the case caption which is on the first page of each set of documents that you prepared previously. 

Then, no later than 17 days before the hearing, mail all of the documents to each of the heirs and beneficiaries: The Ex Parte Notice of Court Date (Seattle) (Kent), Verified Petition, Proposed Order, Death Certificate, Notice of Request for Nonintervention Powers, Declaration of Mailing, and Declaration of your witnesses. While the will likely asks for nonintervention powers, I still think it is advisable to send the Notice to everyone that you are requesting those powers. Remember that the request for Nonintervention Powers must comply with RCW 11.68.041(3). If you personally serve the heirs and beneficiaries with the documents, you only need 14 days, but mailing is easier.

Next, no later than 14 days before the hearing, file the documents you mailed to the heirs and beneficiaries with the Clerk's office. 

Then, no later than 7 days before the hearing, drop off the same set of documents that you filed with the Clerk's office and mailed to the heirs to the Ex Parte Courtroom in Seattle or Kent (depending on which courthouse your case is assigned to). These are the Commissioner's "Working Papers." Be sure to write in the top right hand corner of the first page of each set of documents the date and time of the hearing. These are the documents that the Commissioner will review before your hearing. The Commissioner is not expected to review the court file, so don’t expect that to have happened. The Commissioner will likely only review your "Working Papers" and any pleadings submitted by any other party. 

Finally, arrive on time to your scheduled hearing and hand your proposed Order to the clerk in the Ex Parte Courtroom. Have a seat and wait for the Commissioner to call your case. Probate hearings are scheduled at 10:30, Monday-Friday in King County. If the copy is admitted to probate, you should file the copy as a separate document in the court file with a coversheet indicating that it is a copy of the will.