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What Happens When a Will is Discovered After Probate?

Article written by Attorney Kevin O'Flaherty
Updated on
April 17, 2020

You’re cleaning out your grandmother’s old lake house attic to get the house ready to sell. You find an old chest full of papers and discover one of them is her original long lost will. She left everything to you and your evil cousin wasn’t supposed to get a dime; sounds like the plot to a made-for-television movie.

Is there anything you can do? Is it all too late? In this article, we discuss presenting a lost will after probate, whether the copy of a lost will is legal in Illinois, and reasons for reopening an Illinois probate estate after it has been closed. 

Presenting a Will After Probate

When someone dies their estate enters probate. The decedent’s (deceased person) assets will be distributed based on whether a will exists or not. Estate probate cannot be put on hold indefinitely because a family member or potential legatee believes a will exists somewhere. There are deadlines associated with estate probate in Illinois. Extensions can be granted, but typically the process must have started within 30 to 45 days after death. If no will can be found the assets will be spread evenly to the appropriate family members by the estate administrator assigned to the case. 

What happens after bringing the new(old) will forward depends on where you are in the probate process. For the sake of this article, we are focusing on the time period after probate has completed. But generally, when trying to present a new will you are asking the probate court to revoke the existing grant of probate (the document giving the administrator the authority to pay debts of the estate and hand down any remaining property and assets to the appropriate individuals based on the law in Illinois).

If the probate process has been finalized and all debt has been paid and all assets administered, then the estate would have to be reopened. But is finding an old will, especially if it is past the 14-month deadline in Illinois for a probate case to be closed (if no extensions were granted) legal grounds for reopening an estate. Some courts in Illinois have argued that the appearance of the original lost will warrants the reopening of an estate. Many times the primary argument hinges on whether a new asset or property is discovered through the will. If so, then it is highly likely the estate will be reopened, and there is no statute of limitations on reopening a closed probate estate in Illinois.

Once the petition to reopen the estate is granted all pertinent and involved parties must be notified of the reopening. After all the parties have been notified and depending on what is discovered in the will, the executor will work through satisfying any new debts, administering any inheritances and passing on any new property. It’s possible that if the will’s stipulations were vastly different from how the estate’s property and assets were originally administered legal action by one or more parties may ensue.

What if a Will Exists But No One Can Find The Original?

If a will can not be found it’s presumed that it was destroyed and revoked by the testator (the individual who the will concerns). However, it is still possible to probate a lost will if a copy exists. In order to do so the decedent’s heirs must be able to prove that the testator did not purposefully destroy or hide her will and was not involved in any way in the disappearance of the will. Some examples of factors that may convince a court to allow a lost will include:

  • The home where the will was kept was destroyed by some natural disaster or fire and the testator died as well;
  • The heirs can provide evidence that the will was created and kept in a specific area which was destroyed and/or robbed;
  • The heirs can provide evidence that the decedent was never in possession of the will and the fact that the will is missing cannot be explained by revocation; and
  • The heirs can prove the will was destroyed after the testator’s death.

If the heirs and the legatees all agree on having a copy of the will admitted, then the court can permit the admission of the copy without a formal hearing. This will usually be the case if the heirs and the legatees are the same. Based on Illinois intestacy law, heirs are the individuals who inherit the estate when no will exists and legatees are the beneficiaries of an estate when a will exists. They are not always the same individuals.

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