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What happens if a will is lost?

On Behalf of | Jun 21, 2024 | Estate Planning |

Important estate planning documents such as a will should be kept in a secure place, such as a filing cabinet, safe or safety deposit box. However, sometimes unexpected events cause a will to be lost or destroyed.

When someone dies, the executor is responsible for filing the original will with the court. If the original will cannot be located, the first step is to determine if the will was revoked or simply lost.

If it was revoked, it cannot be submitted since the contents no longer have any legal effect. However, if it appears the will was lost or accidentally destroyed, its contents are still considered legally valid and a copy could still be submitted to the court.

Giving notice

When the executor submits a copy of the will to the court, they must provide notice to all heirs and beneficiaries. Heirs are people who would inherit assets if there was no will in place.

Submitting a copy of the will to the probate court does not guarantee that a court will approve it. The court starts with the assumption that the original will is unavailable because it was revoked.

To overcome this assumption, the executor must prove that the decedent did not intend to revoke their will and the copy that was submitted is a true copy of the original will. The law requires this to be proved by clear and convincing evidence.

Proving a copy is valid

Proving that a will was lost or accidentally destroyed rather than revoked can certainly be challenging. However, it is possible.

Testimony from a neutral third-party about how the decedent did not want or plan to make any changes to the will or evidence about how the will was lost may prove that the will was not revoked. Testimony from witnesses to the original will could prove that the contents of the copy are legitimate.

While a lost will can make the estate administration process more complicated, a copy of the will combined with the right evidence can allow a probate to be opened.