I Found a Will That Doesn't Match the Last One: Which Applies?

After a death, a relative opens a drawer or a safety deposit box and finds a will that is different from the one everyone expected. Now there are two documents, possibly with different dates, different executors and different gifts, and nobody is sure which one counts.

This is a situation where acting quickly in the wrong direction can cause real harm. This article explains what to do with the documents, who needs to be told, and what the probate process asks for. Which will is valid depends on the documents themselves, so a lawyer should read them before anyone relies on one.

Why you should not pick one yourself

It is natural to assume the later date wins. How the dates affect which document applies depends on the wording and the circumstances, so it is worth confirming with a lawyer. A later document might be a full will, a partial will, or an amendment.

Those questions turn on the wording and the circumstances in which each document was signed. Only someone reading the originals can answer them, which is why the first step is to protect the documents, not to choose between them.

What to do with the documents right away

Treat every document as important. A court application for probate requires submitting the original will and any codicil. A photocopy will not do the same job, and a damaged or missing original can create complications of its own.

• Do not write on, staple, cut, or throw out any document, including drafts and older wills.
• Note where, when and by whom each document was found, and photograph it in place.
• Make copies for your own reference, but keep the originals safe.
• Tell the named executors in each document, and the lawyer who may have prepared them, that more than one document exists.
• Look for envelopes, notes, lawyer's letters or a codicil kept with either will.

If you are the one who found the will, avoid keeping it quiet. Hiding a document, even with good intentions, can turn a manageable situation into a dispute.

How the probate process treats the will

Probate is the court process that confirms the estate trustee's authority. The application is on Form 74A, with an affidavit of service, a draft certificate, and for a will an affidavit on Form 74D, 74E or 74F. It is filed with the Superior Court in the county where the deceased lived.

Probate is normally needed if the deceased owned real property or assets held by a financial institution. Smaller estates may use a small estate certificate, available for estates valued at $150,000 or less. Which route fits depends on the estate, and the uncertainty over two wills is a strong reason to get advice before choosing.

Who has to be told

The application must be sent to everyone entitled to a share before filing. With a small estate certificate, the signed application must be sent to entitled beneficiaries at least 30 days before filing. When two wills exist, the people entitled under one document may be different from those under the other, so deciding who receives notice is one of the questions to settle with a lawyer.

Cost and other practical points

Estate administration tax applies to estates over $50,000 at $15 for every $1,000 or part of $1,000 of estate value, with the value rounded up to the nearest thousand. This tax does not depend on which will applies, though who receives what does.

A bond is generally required if there is no will, you are not the named estate trustee, or you are not a qualifying resident. If the document naming you turns out not to be the one that applies, that can change whether a bond is needed.

While the question is open, avoid distributing property, selling assets or paying gifts that depend on one will being right. Ordinary steps such as securing the home and gathering account information are sensible.

What to do next

• Secure all originals in one safe place and write down where each was found.
• Contact an estate lawyer and bring every document, including copies of earlier wills.
• Ask the lawyer which document is likely the last will and who the executor is.
• Identify everyone who may be entitled to a share under either will.
• Hold off on distributions, sales or major decisions until the probate path is clear.
• Once the path is clear, gather the original will and any codicil for the application.

Frequently asked questions