Processing the loss of a loved one can be a difficult and stressful time, emotionally and, unfortunately, administratively. The average person doesn’t deal with death, legal documentation, and probate court on a daily basis. So, in the best of circumstances, it can be a challenge to settle a loved one’s estate — especially if the will is MIA.

By design, a last will and testament is meant to facilitate the transition of assets, like money and property, from one person to their chosen heir(s). Ideally, the heirs and the executor of the will are aware of their roles and the distribution of assets ahead of time, so that there aren’t any surprises. Although, of course, surprises aren’t uncommon. However, one of the most challenging surprises to overcome isn’t who gets what — it’s where is it?

If the original copy of a will cannot be located, unfortunately, it’s not as simple as printing off another copy or emailing it to the courts as an attachment.

Presumption of Revocation

In the event that an original will cannot be accounted for (even when a copy is available), the courts, by law, must assume that the testator’s intention was to revoke the will. Revocation can be done in any number of ways, including intentionally burning, tearing, or otherwise destroying it.

When there is a presumption of revocation, the estate will be treated in probate court as if no will exists and the decedent (person who has passed away) has died intestate. Their property would be distributed among their heirs. First, a spouse and any children. If they did not have a spouse or children, the courts would look to their next closest surviving relatives, which may be their parents, adult siblings, nieces and nephews, and cousins.

Overcoming a Presumption

There is a high bar to clear in order to overcome a presumption of revocation. Though the courts will generally operate on this assumption that the will was intentionally gone and therefore made invalid by choice, certain evidence may work in favor of accepting a copy of the will.

There are some extenuating circumstances that could account for why the will has gone missing. These may include:

  • Evidence that the document was located in a home that was destroyed by flooding, fire, or other natural disaster that caused the death of the decedent
  • Evidence that the will was stored in a different location and was not in the possession of the decedent at the time of their death
  • Evidence that the will was destroyed or lost after the decedent had passed away

This is not an exhaustive list of circumstances that may hold water with the court if clear and substantial evidence can be presented. When a petition is put forth to admit a copy of the will to probate, the legal presumption of revocation will stand right up until the presumption of revocation is rebutted.

Once the evidence has been presented and accepted by the court, a decedent’s heirs will be allowed to submit a copy of the original will into probate. If the will’s contents are straightforward and uncomplicated (i.e., they essentially mirror the state’s intestacy law and all heirs are in agreement with adhering to the directions of the digital copy) it’s even possible that the probate court may admit the document without requiring a hearing.

Put Safeguards In Place Today

Though the challenges presented by a lost will can be overcome, especially when you have an experienced estate attorney by your side, the better course of action is to take steps today to entirely avoid the situation.

Make sure your own will is safely stored. You’ll want to make sure it is in a secure location and protected from fire and flood. A fireproof safe is best, but then it becomes critical that other trusted individuals, like adult children or your attorney, know the location and either the combination of the lock or the location of the key. And just in case, you do want to make sure they have a copy.

If you don’t feel comfortable having these documents in your home, speak with your lawyer about storing them at their offices. Again, the important thing here is that your loved ones know who to contact in the event those estate planning documents become necessary. A safety deposit box is typically not an advisable location simply because they might not be readily accessible.

Once you’ve reviewed the security of your estate planning documents and shared that information with the people who should have it, it’s time to talk to the people whose care you may one day be responsible for. Parents and grandparents, aunts and uncles. Speak with them to make sure that they have estate plans and documents in place and what that place is (or at least that they’ve shared the location with other trusted individuals.)

It’s much easier to take these steps now than it is to reverse a presumption of revocation someday in the future.

Get Expert Advice

Settling an estate can seem overwhelming, and sometimes it’s hard just to know where to start. Proper planning can make a big difference. So can working with an attorney who can guide you through the legal system and help work through any family dynamics. 

It’s essential to partner with an experienced and compassionate advocate who can help you navigate the complexities of planning for the future and make sure your loved ones are provided for. 

If you want to know more about how to get started, reach out to schedule a one-on-one consultation with one of our expert attorneys.