When someone dies in
Illinois, it is the duty of any person who believes that they are in possession
of the deceased person's will to file it with the Clerk of the Circuit Court,
Probate Division in the county where that person died or resided. The law
provides that any person who willfully alters, destroys or secretes a will for
more than 30 days is subject to a felony conviction.
Prior to death,
there is no requirement that a will be filed, recorded or otherwise safeguarded
pursuant to any rule of law.
After a will is
prepared, great care should be taken to properly safeguard the will. Many
individuals will leave the original with the attorney who may have drafted the
will. Some folks will put a will is a safe deposit box, while others will
merely keep it in their possession at their home.
The critical factor
is storing a will is to make sure that someone trustworthy knows where the
original will is and where those that may not like what is in the will do not
have access to the original.
Occasionally, we see
situations where a person is certain there is a will but the signed original
cannot be found. When no original can be found, there is a presumption
that the testator (the person whose will it is) had revoked the will. This
presumption can be overcome, but is difficult to do so. You will probably
need witnesses (disinterested) who saw the signed will at or near the time of
the death of the testator and can further testify what the content of the will
was. Thus, a signed copy is of great help in this situation.
As you can imagine,
a person with access to the original will who has not been mentioned in a will
(ie., a disinherited child with keys to the house where a will may have been
kept) could have an incentive to not file a will. Although this could
subject someone to criminal issues, I am certain that this occurs time and time
again. Further witness testimony that a disinherited person had access
and the testator had given no indication of an intention to change an
estate plan from what is expressed in a copy of a will could be crucial to
attempting to prove a lost/stolen will. Of course, you will still need
testimony that the copy of a will (or other evidence of the contents of a
purported will) was what the testator intended--ie., that the witness knew of
the will at or near the time of death and the testator confirmed their desires
are what the witness is presenting or testifying to.
The moral:
make sure that your original will is well safeguarded and someone that is highly
trustworthy has access to the original upon your demise.