When someone dies, one of the first practical steps is finding and obtaining their original will. Where a solicitor has been holding it for safekeeping, the process is usually straightforward, but there are clear rules about who can ask and what they must provide. This guide covers the normal case and the awkward ones: an unknown firm, a firm that has closed, and a will that cannot be found at all. It applies to England and Wales.
The most important point: you do not need the grant first
A common and costly misconception is that a solicitor can insist on seeing a grant of probate before releasing the original will. That is wrong, and it causes avoidable delay.
A will speaks from the date of death, and an executor’s authority comes from the will itself, not from the grant. The Law Society’s own practice guidance is explicit: a sole executor, or all executors jointly where there is more than one, is entitled to the original will from the date of death, subject only to adequate verification of identity.
Since you cannot apply for the grant without the original, requiring one before release would be circular. If a firm asks for a grant, it is reasonable to point this out.
Who can request the original will
The solicitor holding the will owes a duty of confidentiality, so they will only release it to someone with a recognised entitlement.
- The executor named in the will is the person entitled to the original. Where there is more than one executor, the request should come from all of them jointly.
- A beneficiary may be given sight of a copy, but has no right to hold the original.
- Next of kin who are not named in the will have no automatic right to the original or even to read it before a grant is issued. This surprises many people, but until a grant is issued the will is a private document.
- Creditors and others generally need the executor’s authority or a court order.
Once a grant of probate is issued the will becomes a public document and anyone can obtain a copy. Our guide to how to get a copy of a will explains that route and the fees.
Making the request
Write to the firm, by letter or email, stating that you are the executor named in the will of the deceased and giving their full name and date of death. Most firms will want the request in writing even if you telephone first.
You will usually need to provide proof of your own identity, typically a passport or driving licence plus a recent utility bill or bank statement; the deceased’s full name, date of birth and date of death; and a copy of the death certificate, with the firm often wanting to see an original or certified copy.
Firms may charge a modest administrative fee for retrieving and releasing the document. Ask what it is before proceeding. It is ordinarily a legitimate estate expense, recoverable from the estate; our guide to testamentary expenses explains which costs the estate can properly bear.
Keep the original safe once you have it. The probate application needs the original document, not a photocopy.
When you do not know which firm holds the will
This is common where the person who died kept disorganised records or never told anyone where the will was.
Start with the paperwork. Bank statements, correspondence, emails and phone records often yield a firm’s name, particularly around the date the will is likely to have been made.
Ask the banks. Some will confirm to an executor whether they hold a will in a safe deposit facility.
Search the National Will Register. This is the Law Society’s preferred provider of will registration and search services, at nationalwillregister.co.uk. Registration records only the existence and location of a will, never its contents. Two products matter: a Will Register Search, currently £65 including VAT, which checks the register itself and is published as taking up to 48 hours; and a Will Search Combined, currently £140 including VAT, which also makes geographically targeted enquiries of firms in the area and is published as taking up to 28 days. Not every will is registered, so a negative result does not prove there is no will.
Consider a wider probate search. Professional researchers can search more broadly. See probate research, genealogy and will searches.
Check whether a grant has already issued. If someone else has applied, a search of the probate records will show it. A standing search will also tell you if a grant issues in the next six months.
When the firm has closed
Firms close, merge and change names, and wills can be hard to trace as a result.
Start with the Solicitors Register at sra.org.uk, which shows whether a firm is still regulated, whether it has closed, and often which firm took over its files.
Where the SRA has formally intervened to close a firm, it takes possession of the client files and papers and holds them. Documents are requested from the SRA Intervention Archives using its published document request form. There is no fee, and the SRA aims to deal with requests in around 8 to 12 weeks, sometimes longer depending on the volume of files and where they are stored. As executor you will need the death certificate and evidence of your appointment. Note that the SRA does not guarantee to release an original document in every circumstance, so ask what you will actually receive.
If the original will cannot be found
This is where most published guidance goes wrong. It is often said that a lost will means the estate must be dealt with as an intestacy. That is not the law, and treating it as the law can cost beneficiaries their inheritance.
Under rule 54 of the Non-Contentious Probate Rules 1987, an application can be made to admit to proof a will contained in a copy, a draft or a reconstruction where the original is not available. The application is supported by an affidavit or, since November 2020, a witness statement verified by a statement of truth, setting out the grounds and addressing the will’s existence after death, the accuracy of any reconstruction, and due execution where the registrar asks for it.
There is a hurdle. Where a will was last known to be in the testator’s own possession and cannot be found after death, the law presumes they destroyed it intending to revoke it. That presumption can be rebutted on the balance of probabilities, and its strength depends on how securely the testator kept the document.
But the presumption is about the testator’s custody. Where the original was deposited with a solicitor and never returned, the presumption does not arise at all: the court in Blyth v Sykes [2019] EWHC 54 (Ch) confirmed that it does not apply where the will was more likely in a third party’s possession than the testator’s.
So if a firm has lost a will it was holding, that is a very different position from a will last seen in the deceased’s desk drawer, and it is usually a much better one. Take advice rather than assuming intestacy.
When the solicitor is named as executor
Some people appoint their solicitor as executor, alone or alongside a family member.
A solicitor named as sole executor may take on the role or renounce it, but cannot simply hand the will to a relative and step aside without following the proper process. If they do renounce, a beneficiary may be able to apply for letters of administration with the will annexed.
Where a solicitor is your co-executor, you act with equal authority and decisions should be made jointly. Neither can override the other. Disagreements between a family executor and a professional one can become entrenched, and early advice is worth having. See the duties of an executor.
If you think the will itself is suspect
Obtaining the will is sometimes the first step in questioning it. Where there is a real concern about capacity, knowledge and approval, or undue influence, the drafting solicitor can be asked for a statement of the circumstances in which the will was prepared and executed, including their file notes and who was present.
This is known as a Larke v Nugus request, after Larke v Nugus (1979) 123 SJ 337, and the Law Society has published practice guidance on responding to one. The solicitor is not compelled to answer at that stage, but failing to co-operate can carry costs consequences later. Our guide to contesting a will covers the grounds.
Delay and complaints
There is no fixed statutory period within which a firm must release a will, but unreasonable delay is a professional conduct matter. A written request stating your role as executor usually prompts action.
If it does not, complain to the firm first and allow eight weeks for it to resolve the matter. You can then refer the complaint to the Legal Ombudsman, subject to two limits: within six months of the firm’s final written response, and no more than one year from the act complained of, or from when you should reasonably have known there was cause for complaint. The one-year limit was shortened from six years on 1 April 2023, so older guidance is out of date. An ombudsman has discretion to extend a limit where it is fair to do so.
In serious cases an executor can apply to the court for an order compelling release.
Getting help
If you are working through an estate and want support, The Probate Network can introduce you to regulated legal advisors and a range of probate services. Our probate checklist sets out the whole process, and how much solicitors charge for probate covers the likely cost.
Frequently asked questions
Do I need a grant of probate before a solicitor will release the original will?
No, and a firm that insists on one has it backwards. An executor’s authority comes from the will, not the grant, and the Law Society’s guidance confirms an executor is entitled to the original from the date of death, subject to identity checks. You need the original in order to apply for the grant, so requiring the grant first would make the application impossible. Where there are several executors, the request should be made jointly.
Can a beneficiary demand the original will from a solicitor?
No. A beneficiary may be shown a copy but the original belongs with the executor. Once a grant is issued the will becomes a public document and anyone can obtain a copy from the probate records.
What if the solicitor refuses to release it?
Put the request in writing, state your role as executor and confirm your identity. If the firm still refuses without good reason, complain to the firm and allow eight weeks. You can then go to the Legal Ombudsman, within six months of the firm’s final response and within one year of the act complained of. In serious cases the court can order release.
How do I find a will if I do not know which firm holds it?
Search the deceased’s paperwork for any solicitor’s correspondence, ask their bank whether it holds anything in safe custody, and search the National Will Register at nationalwillregister.co.uk. A register-only search is £65 including VAT and published as taking up to 48 hours; the combined search, which also canvasses firms in the area, is £140 including VAT and published as taking up to 28 days. Not every will is registered, so a nil result is not conclusive.
The firm has closed. Where are the files?
Check the Solicitors Register at sra.org.uk, which records closures and often names the firm that took over. Where the SRA intervened to close a firm, it holds the client files itself and you can request documents from its Intervention Archives using its document request form. There is no fee, and it generally takes around 8 to 12 weeks.
What happens if the original will is lost altogether?
Not necessarily intestacy. Rule 54 of the Non-Contentious Probate Rules 1987 allows a copy, draft or reconstruction to be admitted to proof, supported by a witness statement or affidavit. The complication is that where the will was last in the testator’s own possession, it is presumed destroyed with intent to revoke, though that presumption can be rebutted. Importantly, where the original was held by a solicitor rather than the testator, the presumption does not arise at all. Take advice before concluding the estate is intestate.
This article is for general guidance only and applies to England and Wales. It does not constitute legal advice. Rules, fees and thresholds can change and every estate is different. For advice on your own circumstances, speak to a qualified solicitor. You can book a free legal consultation through The Probate Network.
