The original will may be kept by the person who signed it, held by an attorney who has agreed to store it, or deposited with a Massachusetts court for safekeeping. There isn’t one storage arrangement that every family uses.
What matters is knowing where the signed original is and making sure the appropriate person can obtain it after death. A beautifully organized estate planning binder won’t solve the problem if it contains only copies and nobody knows what happened to the document the person actually signed.
Do Not Assume Your Attorney Has the Original
If an attorney prepared the will, don’t assume the attorney kept the original. Some offices retain originals under an agreed arrangement, while others return them to the client. Ask specifically whether the office has the signed original or a copy, and keep that answer with your estate planning information. If the attorney has retired, moved, or closed the practice, identifying the person responsible for the files before there is an emergency can save your family a difficult search.
Storing It: Home, Safe, Safe-Deposit Box, or the Court
Massachusetts allows a person to deposit a will with the court during life, where it must be kept sealed and confidential under the applicable rules. For someone storing the original at home, the practical concern is protecting it from loss or damage while making its location known to a trusted person. A safe may work well if someone can access it when needed. A safe-deposit box requires attention to access arrangements, because knowing which bank holds the document doesn’t necessarily mean a family member can retrieve it immediately. See the Massachusetts law on court safekeeping of wills.
After a Death, Whoever Has It Must Hand It Over
After the person dies, whoever has custody of the will has a legal responsibility to deliver it. Massachusetts generally requires delivery within 30 days after notice of the death to someone able to secure probate, or to an appropriate court if no such person is known. A person who willfully withholds the will can face liability, and refusing to comply with a court order requiring delivery can result in contempt. Disagreeing with the will’s contents doesn’t give someone the right to keep it from the estate. See the Massachusetts duties of a will’s custodian.
If the Original Cannot Be Found, Search Before You Conclude
If the original can’t be found, start with a careful search rather than assuming there was no will. Contact the drafting attorney, check the places where important records were kept, and ask whether the original was deposited with a court or entrusted to someone else. Preserve any copies, correspondence, and information about where the original was last seen. Those details can matter later, particularly if there is a question about whether the document was misplaced, accidentally destroyed, or intentionally revoked. If there turns out to be no valid will, Massachusetts intestacy law decides who inherits.
A Copy Can Sometimes Be Probated
A copy may still be offered for probate in Massachusetts, but it generally requires a formal proceeding and supporting evidence. The court’s instructions allow a copy or a statement of the will’s contents when the original is unavailable. That doesn’t mean a photocopy is automatically accepted as the person’s final will. The court needs a sufficient basis to determine that the document should be admitted, and the necessary evidence depends on why the original is missing and whether anyone objects. See the Massachusetts formal probate instructions.
The Presumption of Revocation
One issue is the presumption of revocation. When a will was last in the deceased person’s possession and can’t be found after death, Massachusetts law may presume that the person destroyed it intending to revoke it. That presumption can be rebutted with evidence, and it doesn’t apply automatically whenever any original goes missing. Who last possessed the will and what happened afterward can change the analysis substantially. See the Massachusetts Supreme Judicial Court decision on missing wills.
Where to Start
If you’re planning ahead, a clear storage arrangement and a short conversation with the person you trust to handle your affairs can prevent much of this uncertainty. If a death has already occurred and the original is missing, bring the copies and search information to an attorney before distributing property. We can assess whether the will can be established and what your family needs to do to move the estate forward.
Not sure where your family’s original will actually is?
Book a free 15-minute consult call with our Lead Intake Coordinator, Nicole Ott, or give us a call at 978-657-7437. There is no charge and no pressure. The goal is simply to work out what your family actually needs to do next.
You can also download our free report, The Foundational 4 of Estate Planning.
