Dear Len & Rosie,

We have wills made out by a lawyer in 1984 who is no longer practicing. He either died or moved away; I don’t know which. What happened to our original wills that were on file in his law office? He just gave us copies. My husband and I do not want to change our wills. Are they still valid? Do they avoid probate? Is the only way to avoid probate is to get a living trust? Our largest asset is our home and some mutual funds.

Geraldine

Dear Geraldine,

Your wills are still valid, but they won't do your children much good unless they can find the originals. A photocopy of a will can be probated, but someone could contest the will by claiming that the original was revoked instead of just being lost.

A lot of attorneys offer to keep the original wills they prepare for their clients, at no charge. They do this so they can probate the estates of their clients. When a client dies, their children read the copy of the will and call the attorney whose name is stamped in big bold letters on the first page. That attorney is more likely to pick up the probate than anyone else. A locked filing cabinet full of wills is a potential goldmine of future probate work.

There are good reasons to let your attorney keep your original wills. If your wills are in your attorney’s safe, you do not have to worry about losing them. You may even be concerned that certain family members may go so far as to destroy your will to get a larger inheritance. If the will is in your attorney’s safe, that will not happen.

In your case, this backfired. After your attorney retired or died, his staff should have mailed the original wills to you and your husband. Of course, they may have tried that. If you moved without telling your attorney, then his staff had no way to return your original wills.

If they could not find you, they should have done one of two things. Your wills could have lodged with the Superior Court. Or, they could have transferred your wills to another attorney while giving notice to the California State Bar Association. Check with the Superior Court in the county where the lawyer had his office. If that doesn’t work, check with the State Bar.

You may be better off avoiding a wild goose chase and hiring another, younger, attorney to revise your estate plan. Wills do not avoid probate. After either you or your husband dies, the survivor between the two of you can collect the decedent’s estate outside of probate, if you own everything together as joint tenants or as community property with right of survivorship, but when the survivor dies, the estate will have to be probated in the courts. You can avoid probate, and probate fees, by getting a revocable trust. Since you need new wills anyway, you should see a new attorney who can advise you on all of your options.

Len & Rosie

Tillem McNichol & Brown