What Happens If A Will Goes Missing?
After a person has died, it is critical to locate and file the original, signed will with the appropriate probate court. Ideally, the deceased will have left their will in a safe-but-accessible place for their executor or another family member to locate. Many people choose to leave their original wills with their attorneys as an added measure of protection.
But what happens if the original will cannot be located? In some cases, the deceased may have simply decided to revoke or destroy the will, in which case they died intestate. If family members insist, however, that there was a valid will, then it may still be possible to get it admitted to probate court.
Proving the Existence of a Lost or Destroyed Will
Florida law actually provides for situations where a will has been “lost or destroyed.” Basically, any person with an interest in the estate of the deceased can still “offer the will for probate.” Of course, the court will not simply take the interested person at their word.
In most situations involving a lost or accidentally destroyed original will, there is still at least one copy of the original. Florida courts will accept a “correct copy” of an original will, but it must be “proved” by at least one “disinterested witness.” Keep in mind, a valid Florida will must normally be signed by at least two disinterested witnesses. So if you have a copy of the will, you only need to locate one of the original two witnesses.
If there is neither an original nor a correct copy of the will, however, then the law requires both disinterested witnesses to “prove” a will still exists. The witnesses cannot simply say they saw the deceased signed the will. They must also prove the “specific content” of the will. This is often difficult, if not impossible, as the witnesses would need to recall the specific terms of the original will from memory, oftentimes years after the fact.
Speak with a Florida No Will Lawyer Today
There are other challenges in attempting to probate a lost will. For one thing, the law presumes a missing will was intentionally destroyed by the deceased. The person seeking to probate the missing will therefore needs to prove that was not the case. For instance, they would need to show the will was destroyed by accident or that someone else destroyed the will without the knowledge of the deceased.
Second, when there is a missing will, any attempt to probate a copy is more likely to be challenged by other family members or individuals who stand to gain from the estate of the deceased, such as beneficiaries under an earlier will. In other words, even if you strongly believe the deceased left a will, it may not be worth the time and trouble to try and prove it in court.
One thing is certain: If you are involved in an estate where the will cannot be located, it is in your best interest to speak with a qualified Pompano Beach estate & trust litigation attorney. Contact Mark R. Manceri, P.A., Attorney at Law, today to schedule an initial consultation.