Creating a will is intended to ensure that the testator’s wishes are carried out after he or she dies. Ideally, the testator will have a plan for safekeeping the will, and the personal representative and one or two other trusted people will know where the will is kept. Some common options are leaving the original will in the care of the attorney who prepared it, placing it in a safe deposit box, or keeping it in a safe or fireproof lockbox at home.
But, occasionally, a will goes astray. Perhaps the testator lost the original and didn’t realize it, or just didn’t recognize the importance of preserving the original document. Perhaps it was inadvertently disposed of while the family was clearing out the testator’s home. Or, perhaps someone who would benefit under the rules of intestate succession disposed of the will in order to receive more than his or her fair share.
Family members may know that there is a will, and may even know what the will says. But, if the will has been lost or destroyed, the personal representative and beneficiaries will face a challenge. If you know your loved one left a will and have been unable to locate the original, it is in your best interest to speak with an experienced Florida estate litigation lawyer as soon as possible. You have options for ensuring that your relative’s wishes are carried out, but Florida law sets forth very specific requirements for establishing the validity of a will when the original is unavailable.
What if the Original Will Cannot be Located?
In order to establish the existence and validity of a will without the original document, your probate attorney will have to file a petition with the court to establish and probate the will.
Florida law spells out exactly what is required to establish the terms of a will that has been lost or destroyed and probate that will:
Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness. (Florida Statutes §733.207)
When a copy of the will is available, this will typically be accomplished by having one of the two witnesses to the will testify that the copy submitted is an accurate copy of the will he or she witnessed and signed. Establishing a lost or destroyed will is trickier if there is no copy available, for a few reasons:
- Two witnesses are required instead of just one
- It may be difficult to identify and locate the witnesses who signed the will without a copy of the will
- The witnesses must be able to establish the terms of the will from memory if there is not a copy of the will available to review and verify
Another obstacle that arises when a will is missing is that Florida courts presume that a will that can’t be located has been intentionally destroyed by the testator. Under Florida law, intentional destruction of a will is one way the testator can revoke the will. Thus, the burden shifts to the personal representative or other party seeking to establish the will to show that the testator did not revoke the will by tearing it up, burning it, or otherwise intentionally destroying it. This may be established through evidence such as:
- Evidence that someone else who stood to benefit from destruction of the will may have destroyed the will,
- Evidence of accidental destruction of the will,
- Evidence that the will existed after the death of the testator, and so he/she could not have destroyed it, or
- Evidence that the testator lacked testamentary capacity, and therefore could not have made a valid revocation of the will
In some cases, the evidentiary issues can be avoided by securing waivers from all heirs who would inherit under intestate succession.
Frequently Asked Questions (FAQs) about Lost Wills
Can a Copy of a Will be Probated if the Original is Lost?
The short answer is yes, but you can’t simply submit a copy to probate in place of the original. Florida law sets forth specific procedures that are required to establish that a copy of a will is accurate, and that the testator did not intentionally revoke the will by destroying the original.
What if There is No Copy of a Lost Will?
It may still be possible to probate a will when no copy is available, but the bar is high. Two disinterested witnesses must be able to testify to the specific contents of the will. And, the person seeking to establish the will must also show evidence that the testator didn’t intentionally destroy the will.
Is There Any Other Way to Establish a Copy of a Will?
The probate court may grant a petition to establish and probate a copy of a will if all intestate heirs are willing to sign a waiver. However, if there is even one hold-out, a court proceeding will be required to establish the will, and evidence will be required as described in the Florida statute.
What Happens if the 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 and witnesses are unable to reconstruct the content of the will for the court. What happens next depends on whether the deceased had a prior will that was revoked by the creation of the lost will. If there was no will in force at the time the lost will was created, property will be distributed according to Florida’s intestate succession law. But, if there was a previous will in force, that will may be revived by the presumed revocation of the lost will.
Is it Always a Good Idea to Try to Establish a Lost Will?
It may seem obvious that if you know a will exists and can establish its contents, you would proceed with a petition to establish and probate a copy of the will. However, this process can be expensive and time-consuming. And, often, distributing property via intestate succession will yield the same result as re-establishing the will. In those cases, your probate attorney may recommend simply proceeding without the will in order to avoid unnecessarily depleting the estate.
What if Family Members Conflict over a Lost Will?
If family members disagree about the accuracy of a copy of a will or whether the testator intentionally destroyed the will, the court will decide based on the evidence described above. However, estate litigation can be costly. Sometimes, it is in everyone’s best interest to reach an agreement rather than eat up estate assets through litigation.
If you have any questions or concerns regarding the probating of a copy of a lost will or you need representation in a probate litigation matter, contact Florida Estate Litigation Attorney Thomas Upchurch. Call (386) 272-7445, email tupchurch@upchurchlaw.com, or fill out the contact form on this site to schedule your initial consultation.
Florida Probate Attorney Thomas Upchurch serves the entire state of Florida, serving primarily in vicinities of Central and North Florida Areas which include Daytona Beach, Port Orange,Deland, Ormond Beach, Jacksonville, Palm Coast, Orlando, Saint Augustine, and New Smyrna Beach.Areas he serves in South Florida include Miami, Ft. Lauderdale, Coral Springs, and Coral Gables and in West Florida include Tampa and Clearwater. Even if your city is not listed, Attorney Thomas Upchurch may still handle your matter.
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FULL DISCLOSURE
This blog post only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm or my past clients, and is not sponsored or endorsed by them. The case-specific information contained in this blog post is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted on this blog site. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.
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