What If Someone Won't Turn Over the Will After a Death?
Your mother told you she had a will. Your brother, who lived with her, says he will "deal with it later," or has stopped answering the phone. Weeks are passing.
Washington does not leave this to the good manners of whoever happens to be holding the document. Under RCW 11.20.010, any person who has custody or control of a will must deliver it within thirty days after learning of the death, either to the court or to the person named in the will as executor. A person who willfully fails to do so is liable for the damages that result. If a demand does not work, the superior court can order the will produced.
What RCW 11.20.010 Requires
The statute sets two deadlines. Any person with custody or control of a will has thirty days after receiving knowledge of the death to deliver it to the court having jurisdiction or to the executor named in it. An executor who has the will gets forty days after learning of the death, and the executor's only option is to deliver it to the court.
The duty does not depend on whether the holder likes the will or believes it is valid. It applies to a relative, a friend, a caregiver, or anyone else who has the document. It also does not depend on whether anyone plans to open a probate. Delivering a will to the court is a separate step from asking to be appointed, and a named executor who does not want the job is not forced into it by filing the will.
An electronic will has a matching rule. Under RCW 11.12.470, a qualified custodian holding an electronic will must deliver it to the court or the named executor within thirty days after learning of the death, along with a sworn affidavit about how the will was kept.
Where the Will Goes
RCW 11.96A.040 gives the superior court of every county jurisdiction over the probate of wills. For someone who lived in Snohomish County, the will is ordinarily delivered to the Snohomish County Superior Court Clerk's Office in Everett. The venue statute, RCW 11.96A.050, generally lets the person opening a probate choose any Washington county, with a right for others to ask that the case be moved to the county where the person who died lived. What follows after the will is on file is covered in how to start the probate process.
Why People Hold a Will Back
Sometimes the reason is grief. Sometimes it is arithmetic. If no will surfaces, the estate passes under Washington's intestacy statute, RCW 11.04.015, and the person holding the will may do better under those rules than under the document in the drawer. The article on what happens if you die without a will shows how those shares work.
Blended families see this often. A surviving spouse may receive more with no will than under a will that sends separate property to children of a first marriage. A child who lived in the house may prefer an equal split to a will that leaves the house to a sibling. The thirty-day rule keeps the person with the most to gain from silence from deciding whether the will is ever seen.
What Are the Consequences of Refusing?
RCW 11.20.010 carries its own penalty: any person who willfully violates it is liable to any party aggrieved for the damages the violation causes. What counts as damage depends on the case. In estate proceedings the court also has discretion under RCW 11.96A.150 to award costs and reasonable attorney fees against a party.
The statute itself does not make withholding a will a crime. General criminal statutes can still apply, depending on the facts. RCW 9A.72.150, for example, makes it a gross misdemeanor to destroy, conceal, or alter a document, without legal right, when the person has reason to believe an official proceeding is pending or about to begin and intends to keep the document from being available in it. Whether to charge anyone is a prosecutor's decision, not the family's.
The more immediate pressure comes from the court. Once a judge orders a person to produce the will, refusing is contempt of court under RCW 7.21.010, which covers both disobeying a lawful court order and refusing without lawful authority to produce a document. Under RCW 7.21.030, after notice and a hearing, the court may impose remedial sanctions for intentional refusal to obey its order when compliance remains within the person's power. Those sanctions can include jail while it serves a coercive purpose, a forfeiture of up to two thousand dollars for each day the contempt continues, and payment of the other side's resulting losses and costs, including reasonable attorney fees.
The Practical Route: Demand, Then Petition
The usual first step is a written demand that identifies the will, cites RCW 11.20.010, and asks that the original be delivered to the court clerk or the named executor by a specific date. A letter costs little, and it becomes evidence later that any continued refusal was willful.
If the demand fails, the next step is the superior court. Washington's Trust and Estate Dispute Resolution Act, chapter 11.96A RCW, is the procedural home for these disputes. RCW 11.96A.080 allows a party to bring a judicial proceeding to resolve a matter involving an estate, and RCW 11.96A.100 says the proceeding starts with a petition and a summons. RCW 11.96A.040 gives the court power to bring before it anyone it finds necessary to examine and to issue whatever orders are proper. A judge can order the holder to appear, answer questions under oath about the will, and deliver it.
Two other possibilities are worth checking. The person who died may have filed the original with a court for safekeeping under RCW 11.12.265, in which case the clerk unseals it on request with a certified copy of the death certificate. And if the holder claims the will is gone, a copy may still be provable. That process is explained in whether a lost or destroyed will can still be probated.
A Worked Example
Diane, a widow, dies at home in Everett. Her son Greg, who lived with her, has the original of her will, which leaves the house to her daughter Amy and divides everything else equally among Diane's three children. With no will, the three children would share the whole estate equally, house included. Greg tells Amy he will get to it eventually.
Greg's thirty days, or forty if the will names him executor, run from the day he learned of his mother's death. After they pass, Amy's lawyer sends a written demand. When Greg ignores it, Amy files a petition in Snohomish County Superior Court asking for an order that he deliver the will to the clerk. If the court enters that order and Greg still refuses, he faces contempt sanctions, and Amy can ask that he pay the damages and fees his refusal caused. If Greg instead announces that he threw the will away, the drafting lawyer's file copy becomes the center of a lost-will proceeding.
Do Not Wait on Someone Else's Timeline
A will that stays in a drawer delays everything else. If someone is holding back a will, or you are holding one and are unsure what the law requires of you, the Law Office of Chad Foster can help. Call 425.785.8679 to talk with a Snohomish County probate attorney.