What to do if my father died and my brother and I cannot find his Will?

UPDATED: Oct 1, 2022

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What to do if my father died and my brother and I cannot find his Will?

My brother was the one taking care of him at the time of his death and is listed as the primary agent on his living Will. What do we need to do to before my fathers estate goes to probate? My father had dementia and went into extreme

debt in the years before his death because of scammers who took his savings. Will the creditors come after his debt? He didn’t have any saving but he shared title on the house he lived in with my mom, his ex-wife.

Asked on September 17, 2018 under Estate Planning, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If a will cannot be found, it may as well not exist: the court cannot probate (honor; enforce) a will never presented to it. Look through all your father's papers; if you know (or find a reference to) his attorney or accountant, contact them--they may have a copy; if he had a safe deposit box, look in it; etc. 
If you can't find the will, his estate--whatever he had--will pass by "intestate succession"--the rules for who gets what where there is no will. If he was not married when he passed, that will be you and your brother (and any other siblings you have). One of the two of you can ask the court to be appointed the "administrator" or "personal representative" of the estate (states vary in which term they use), which is essentially the executor when there is no will; that person can then take the estate through probate.
If he and your mother co-owned the house as "joint tenants with right of survivorship" (JTROS), when he died, the house became hers in its entirety--she would now be sole owner. If they owned it as "tenants in common," she keeps her share or interest in the house, but his children will inherit (and divide/split among them) his interest or share.
Creditors can try to go after his assets.

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