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Missing Will Discovered Three Years Later, Denied Probate

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Missing will

After someone’s death, what happens when no one can find a will? Their estate usually passes according to the law of “intestate succession.” That means the state’s legislature has effectively written a will for the decedent. What, if anything, can be done about a missing will?

Of course, a missing will might indicate that the signer destroyed the original with the intent to revoke it. The missing will might also mean that no will was ever signed. Occasionally, though, a missing will shows up long after the death of the signer. What happens then?

A missing will turns up — three years later

Gilbert Fuchs died in his home state of Nebraska in 2012. He owned two separate homes. Each had accumulated piles of papers and personal effects. His children collected those piles and sorted through them as best they could.

No one could find a will signed by Gilbert, and so they assumed he had never signed one. That meant that his estate would be divided equally among his four children Jim, Joseph, Julie and Jason.

Jim filed a probate action shortly after Gilbert’s death. He alleged that there was no will, and Nebraska’s law of intestate succession should apply. The probate proceeding continued for the next three years.

Just after the three-year mark in the probate, Jim received a letter at his home. It carried an Omaha postmark, but no return address. Inside he found an original 1987 will signed by Gilbert. That will left everything to Joseph.

Jim told Joseph about the will, and then sent it to him. Joseph, in turn, filed the will with the probate court. He asked the court to rule that it was Gilbert’s last will, and that Joseph would receive the entire estate.

The Nebraska Probate Court rejects the will

Nebraska, like Arizona, has adopted the Uniform Probate Code. Its version of the Code includes a provision that seems to prohibit probate of a will more than three years after death, except in narrow circumstances. Arizona’s version of the same law limits the time to just two years after death, but is otherwise similar.

When Joseph asked the Nebraska court to admit Gilbert’s will to probate, Julie and Jason objected. They pointed to the Nebraska statute and asked the court to rule that it was too late. Joseph responded that he suspected (but could not prove) that the delay was because one of his siblings had found the original will and then hidden it for the three-year period.

That might be true, ruled the probate court, but the fact remained that the three-year period had passed. The court denied probate of Gilbert’s will, and Joseph appealed.

Nebraska’s Supreme Court affirms

Last week the Nebraska Supreme Court ruled on Joseph’s appeal in the missing will case. The state’s high court affirmed the probate court’s ruling, meaning that Joseph will only receive one-quarter of his father’s estate. In re Estate of Fuchs, September 8, 2017.

How can this be the result? Isn’t it clear that Gilbert intended to leave his entire estate to Joseph? If the estate hasn’t yet been distributed, couldn’t it just be redirected according to Gilbert’s will?

Yes, it could — but the probate law is intended to encourage faster resolution of estate disputes and distributions. In fact, a three-year probate proceeding is relatively rare. It would be much more likely that Gilbert’s estate would have been wrapped up and distributed at this point.

In adopting its version of the Uniform Probate Code, Nebraska’s legislature set the ultimate time limit at three years. Except in unusual circumstances, they decided, the beneficiaries of an estate ought to be able to rely on the status of any transfers by that three-year mark.

Takeaways from Gilbert’s missing will

Would the same result occur in Arizona? Almost certainly.

In fact, Arizona’s version of the Uniform Probate Code is even more restrictive. Rather than a three-year period, Arizona restricts late-filed wills to just two years after the decedent’s death.

The Nebraska Supreme Court decision here specifically cited a Montana appellate case based on that state’s version of the Uniform Probate Code. The ruling in that case had allowed the late-filed will, but in slightly different circumstances.

A similar case was decided in Arizona in 1985. In Estate of Wood, the Arizona Court of Appeals refused to allow probate of a will filed with the court almost five years after Arthur Wood’s death. One interesting wrinkle in the Arizona case: the will had been sitting in the estate’s lawyer’s file the entire time. Somehow, it apparently went overlooked until the estate was ready to close up. The opinion is silent about what took the probate five years to reach conclusion.

What practical changes are suggested by the Nebraska case?

Let’s assume Gilbert had signed his will on purpose, and that he still wanted it to apply. If so, one problem was that his affairs were in such disorder. He left papers strewn around both of his two homes. His children had to sort and paw through piles of papers. If one of them — or someone else — intentionally concealed his original will it was easier to do because of his disorganization.

If Gilbert had shared his will with all of his children, they would have known what they were looking for. Even if only one of them knew about the will it might have been easier to find.

Did Gilbert use a lawyer to prepare his will? The answer does not appear in the reported decision — but a lawyer would probably have retained a copy of the will. Contact with his lawyer might have turned up the text of the will his family was searching for. It might even have turned up some ideas about where to look for the will. It might even be possible to probate the will copy in the lawyer’s file.

Gilbert’s will was a quarter-century old by the time he died. Perhaps if he had revisited his estate planning more frequently, his will might have been easier to locate. Twenty-five years is a long time to leave a will unconsidered. Even if no changes need to be made, estate planning documents should be reviewed at least every five years or so.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.