What Happens if You Lost Original Will: [Insights 2024]

Losing the original copy of a will can introduce significant complications into the probate process, potentially jeopardizing the deceased individual’s testamentary wishes. When a will cannot be located but a copy exists, there are specific legal procedures and considerations to navigate in order to ensure the proper administration of the estate.

Firstly, it’s crucial to establish the validity of the original will. In jurisdictions like Washington State, where the common-law presumption of animo revocandi applies, there’s an assumption that a lost or destroyed will was purposefully revoked by the testator. This presumption underscores the importance of proving the original will’s validity and execution.

To proceed with probating a copy of a lost or destroyed will, several key steps must be taken:

1. Establishing the Validity of the Original Will: The court must determine whether the original will was validly executed according to state laws. This includes criteria such as the testator’s mental capacity, written form of the will, and proper witnessing.
2. Addressing Intentional Revocation: Consideration must be given to whether the testator intentionally revoked the original will. Factors such as significant life events or circumstances surrounding the loss or destruction of the will may influence this determination.
3. Proving the Contents of the Original Will: In addition to proving the original will’s execution, there’s a burden of proof to demonstrate the contents of the will. This often requires “clear, cogent, and convincing” evidence, especially if only a photocopy of the original will is available.
4. Navigating Legal Procedures: The process of probating a copy of a lost or destroyed will involves filing a Petition for Probate of the Lost Will. This petition typically includes affidavits from witnesses and the executor, affirming the authenticity of the copy and the circumstances surrounding the loss of the original will.
5. Addressing Challenges and Complications: Challenges may arise in locating witnesses to the original will, obtaining their signatures on affidavits, or providing sufficient evidence to counter the presumption of revocation. Legal assistance from an estate litigation attorney may be necessary to navigate these complexities.

In addition to the legal considerations, there are practical steps individuals can take to minimize the risk of losing the original will:

• Communication: Ensure that trusted individuals, such as the nominated personal representative or drafting attorney, are aware of the will’s location.
• Utilize Court Repositories: Some jurisdictions offer will repository services where original wills can be filed under seal with the court. This provides a secure and accessible location for the will.
• Attorney Storage: Consider storing the original will with the drafting attorney, who can provide added security and facilitate updates as needed.
• Avoid Safe Deposit Boxes: While safe deposit boxes may seem secure, accessing them after the owner’s death can be challenging and require court intervention.

In conclusion, losing the original copy of a will can present significant challenges, but with careful navigation of legal procedures and proactive measures to safeguard the document, it’s possible to probate a copy and ensure the decedent’s testamentary wishes are honored. Seeking legal assistance from experienced estate planning and litigation professionals can help streamline the process and mitigate potential complications.

See Also-Can you Write A Will Without a Lawyer