The Original Will Is Missing: Can a Copy Be Used in Probate?

Courts can often admit a copy of a lost will, but the person offering it must overcome a presumption. If the deceased person kept the will and it cannot be found, the law may assume they destroyed it on purpose.

Search first, in this order

1. Check the places people keep important papers: a home safe, desk, bank safe deposit box and files.
2. Contact the lawyer who drafted the will. Many firms store originals.
3. Ask the probate court clerk whether the will was filed for safekeeping, which some states allow.
4. Ask the executor and relatives, and check email and cloud storage for scanned copies.
5. Write down where and when you searched, since the court may ask.

The presumption of revocation

If the person had the original and it cannot be found at death, many courts presume they revoked it by destroying it. That presumption can be rebutted with evidence that the will was lost or destroyed by accident or by someone else, or that the person still wanted it to apply. If a lawyer or another person held the original and lost it, the presumption usually does not apply.

What the court usually wants to see

• A petition to admit a lost will, which states the contents and why the original is unavailable.
• The best copy available, ideally a signed or conformed one from the lawyer's file.
• Testimony or affidavits from the drafting lawyer or witnesses who saw the will signed.
• Evidence the will was in force at death, such as statements about intentions and the person's consistent plan.
• Notice to heirs and those who would inherit without the will, who may object.

If the copy is not admitted

The estate may pass under an earlier will, if one is valid, or under state intestacy law, which divides property among relatives in a set order. That can be very different from what the person wanted. Heirs who would benefit from intestacy are often the ones who contest, which is why evidence matters.

Costs and timing

Proving a lost will adds hearings, evidence and sometimes expert or witness testimony, so it costs more and takes longer than a normal probate. A probate lawyer can estimate that after reading the file. Some states have specific statutes on lost wills, so state law controls.

Avoiding this later

• Store the original with the drafting lawyer, in a court deposit program where offered, or in a fireproof place that your executor knows about.
• Keep a signed copy in a different location.
• Tell the executor where documents are, and update them after major life events.
• Consider a self-proving affidavit, which speeds probate in many states.

A hypothetical with two outcomes

A man dies and the family finds only an unsigned photocopy of his will. The lawyer who drafted it still has a conformed copy in the file, and both witnesses are alive and remember the signing. The court may admit it because the lawyer's file and the witnesses show what the will said and that it was valid. If instead the man kept the only original, the family cannot find it, and a sibling says he tore it up after an argument, the court may presume revocation and apply intestacy unless the family can show the loss was accidental.

Information to gather before you meet a probate lawyer

Collect the best copy, the name of the drafting lawyer, names of witnesses, dates the will was made and last seen, a list of who would inherit under the will and who would inherit under state law, and any notes or emails that discuss the will. This helps the lawyer estimate cost and risk and decide what evidence to build.

Frequently asked questions