A last will and testament is created to ensure that a person’s final wishes are carried out after he or she passes away. Ideally, the creator of a will, also called a testator, will have a plan in place for keeping the will safe, and only the personal representative and a few other trusted individuals should know the location of the will. Common ways that testators keep their wills safe and secure include:
- Leaving the original will in the possession of the probate attorney who prepared it;
- Keeping the original will in a safe deposit box; and
- Placing the original will in a lockbox or safe at home.
Unfortunately, however, testators don’t always take steps to safeguard their wills, and this can lead to problems during the probate process. Whether a testator lost the original will or simply didn’t understand the importance of preserving the original document, a lost will can be a huge headache for the probate court, the testator’s personal representative, and beneficiaries of the will.
Luckily, as we discuss below, if a will is lost, there are options available to ensure that the testator’s wishes are honored. One option involves having witnesses testify in court as to the will’s contents. However, witnesses aren’t always available, which raises the question of whether affidavits may be used in lieu of witness testimony. In this article, we examine whether affidavits are sufficient to allow admittance of a missing will in Florida.
The Use of Affidavits in Lieu of Testimony to Allow Admittance of a Missing Will
In most cases, a lost will affidavit may not be used in lieu of testimony to allow the admittance of a will that can’t be located. If intestate heirs stipulate to the submission of affidavits in lieu of testimony, then some courts may permit it. However, the Florida Fifth District Court of Appeals, where Daytona Beach is located, requires testimony from one disinterested witness if there is a copy of the will or two disinterested witnesses if the will was lost.
When an Original Will Cannot Be Located
To establish the existence and validity of a last will and testament without the original document, the person seeking to do so must file a petition with the probate court to establish and probate the will. Florida law explains exactly what is required to establish the terms of a will that has been destroyed or lost. Specifically, in Florida, any interested person may establish the terms of a lost or destroyed will and offer the will for probate. If there is no copy of the will available, then the specific content of the will must be proved by two disinterested witnesses. Moreover, if a copy of the will exists, then it must be proved by one disinterested witness. When a copy of the will is available, its content can typically be proven by having one of the two witnesses to the will testify that the copy submitted to the court is an accurate copy of the document that he or she witnessed and signed. Establishing a lost or destroyed will, however, is more difficult if there is no copy of it available for the following reasons:
- Two witnesses must testify to the will’s contents rather than just one
- It may be difficult to identify and find the witnesses who signed the will when no copy of the will exists
- If located, the witnesses must be capable of establishing the terms of the will from memory
Unfortunately, as noted above, a lost will affidavit may not be used in lieu of testimony to allow the admittance of a missing will. Although some courts may permit it under limited circumstances, this typically isn’t an option. Rather, the majority of courts require testimony from one disinterested witness if a copy of the will is available or two disinterested witnesses if a copy cannot be located.
Presumption of Intentional Destruction of a Will
Another issue that arises when a will can’t be located is that Florida courts presume it was intentionally destroyed by the testator. In Florida, the intentional destruction of a will is one way that a testator can revoke the document. Therefore, when a will is missing, the personal representative or another party seeking to establish the will must prove to the court that the testator did not revoke the will by intentionally destroying it. A party may prove this by providing the following types of evidence:
- Evidence that a person who stood to benefit from the destruction of the will may have destroyed it;
- Evidence of accidental destruction of the will;
- Evidence that the will was in existence after the death of the testator, so he or she could not have destroyed it; or
- Evidence that the testator lacked capacity at the time the will was destroyed, so he or she could not have made a valid revocation of the will.
When a Will Can’t Be Established
Sometimes, there is insufficient evidence to establish that a copy of a will accurately reflects the lost original, or there is no copy of the will available, and witnesses are unable to reconstruct the content of the missing document for the court. In these types of situations, what happens next depends on whether the deceased person had a prior will that was revoked by the creation of the missing will. If there was a previous will in force, then that will may be revived by the presumed revocation of the missing will. However, if there was no will in force at the time the missing will was created, then property will be distributed according to Florida’s intestate succession laws. Under Florida’s intestate succession laws:
- A surviving spouse of the deceased individual receives the entire estate if the deceased party has no surviving lineal descendants.
- A surviving spouse of the deceased individual receives the entire estate if the deceased individual has descendants that are also descendants of the surviving spouse and neither party had any other children.
- If the deceased party is survived by a spouse and lineal descendants, and any of the lineal descendants is not also a descendant of the deceased party’s spouse, then the spouse is entitled to one half of the estate, and the descendants share the rest.
- If the deceased person is survived by lineal descendants but not a spouse, then the lineal descendants share the estate.
- If the deceased party has no surviving spouse and no lineal descendants, then the estate passes to lineal ascendants and collateral relatives. Thus, if the decedent’s parents are living, then they are entitled to the entire estate of the deceased party. If the parents are not alive, however, then the estate passes to the deceased party’s brothers and sisters and their descendants.
- If none of the above heirs are living, then the estate passes to the heirs of the deceased party’s grandparents.
Contact a Florida Probate Litigation Lawyer
If you need assistance addressing an issue involving a will that can’t be located in the state of Florida, Upchurch Law is on your side. At Upchurch Law, knowledgeable and experienced Florida estate litigation attorney Thomas Upchurch is here to help you with all of your probate litigation needs, including matters involving lost wills. Upchurch Law services the North and Central Florida areas, including Jacksonville, Deland, Orlando, Daytona Beach, Tampa, Palm Coast, Port Orange, Ormond Beach, St. Petersburg, Saint Augustine, and Titusville. Please contact us today to schedule a free initial consultation with our experienced probate litigation attorney.
Frequently Asked Questions
Do I need the original will for probate?
Although an original will is preferable, an original will is not needed for probate. Florida law establishes the process by which the terms of a missing will may be established. If there is no copy of the will, then the specific content of the will must be proved by two witnesses. If a copy of the will exists, then its content may be proved through the testimony of one witness.
Can you probate a copy of a will?
“Can a copy of a will be probated?” is a question that routinely arises in Florida probate proceedings. A party may probate a copy of a will in Florida. If a copy of the will is available, then it must be proved by one disinterested witness. In this situation, the content of the will can be proved by having one of the two witnesses to the original last will and testament testify that the copy submitted to the court is an accurate copy of the version that he or she witnessed and signed.
Should I try to establish a will that has been lost?
Although it may seem like a good idea to try to establish the contents of a will that can’t be located, doing so isn’t always the best decision. The process of establishing a will that can’t be located can be expensive and time-consuming. In addition, distributing property via Florida’s intestate succession process sometimes yields the same result as establishing a will. Therefore, before attempting to establish the contents of a missing will in Florida, you should contact an experienced attorney for guidance.
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