What Happens When a Will is Lost or Can’t be Found?

As human beings we have a lot to juggle in our lives, and sometimes, things get lost. When we lose things, we at least can track our steps to see if the lost item can be located. But when a will goes missing, the person who made it, who would have an idea of where it might be, is gone.

So what does the family do, when they know there is or was a will…but it’s nowhere to be found?

Defining a Lost Will

It should first be clarified that by “missing will,” the will doesn’t have to be entirely gone; copies of a will are not originals and are not, on their own, legally sufficient to go through probate. With no original will, it is still considered missing. That said, at least a copy of a will is better than no copy of the missing will.

Wills can go missing for a number of reasons. Some are honest, like it is genuinely thrown out or accidentally destroyed, or forever lost to natural disaster like a storm or a fire. Others are more nefarious, like someone who doesn’t like what it says, purposely destroying or trashing the will.

Proving Re-Establishment

If a will or an original copy of it is gone, a probate attorney must file a petition to re-establish the missing will.

If there is a copy of the will in existence, then a witness to the original will must testify that the copy is an exact copy of the original, wherever that original may be.

If there is no copy of the will, then two witnesses to the will must testify in court what the will said.

Problems With Re-Establishment Cases

As you can see, there are a number of obstacles to re-establishing a lost will.

One might be simply locating the witnesses themselves; in time, people move or even pass away. We all lose track of people through time.

The other problem is simply memory–as time goes on, a witness may not even remember what the will said. In fact, many witnesses will sign to, and attest to a will, without even ever having read the will–one reason why witnesses to a will should always read it and be familiar with its terms.

Assumption of Purposeful Destruction

Whoever is testifying must overcome the assumption in Florida law, that a lost will was intentionally destroyed by the creator; that is, that the creator had a will and it can’t be found because he or she didn’t want it found or used. Family or the personal representative must show that this was not the case, leaving them in the difficult position of having to prove a negative.

This can be done by showing that there was some disaster, like a fire or storm, that destroyed the will, or by showing that an original was actually located after the death of the person who made it. Family can also show that the person was incapacitated or physically located elsewhere when the will was lost, and thus, could not have knowingly destroyed the will.

If there are no survivors who would inherit by intestate–or they are willing to waive their intestate rights to inherit–then re-establishing the will also becomes easier, as there is nobody that is being “left out” by re-establishing the will.

Need to re-establish a will in probate court? Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today for help.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.207.html