It’s not uncommon for a testator to make several copies of their will and put them in the hands of loved ones for safekeeping. However, that original document is the one that ultimately needs to be submitted to the probate court.
What happens if you can’t find it? You’ve looked where your loved one said they had the original stored and found an empty folder. You’ve turned their home and office upside down already without any results. What’s next?
Don’t panic. Generally, the court won’t immediately jump to intestate succession (the process used if the deceased left no will behind) as long as there are copies of the testator’s will available. Instead, the court will usually consider several different questions:
Did the deceased have access to their will before their death?
If they did, the court may presume the will was purposely destroyed to revoke it. However, this is a rebuttable presumption – which means that the court will entertain any evidence (including witness testimony) that this was not the testator’s intent.
If the testator didn’t have access to their will – such as might occur when they were in a care facility for a considerable amount of time and the will was located in a storage facility – the court may presume that the original was lost or misplaced and accept a copy of the will for probate.
Do the beneficiaries and heirs agree that the copy is accurate?
It’s much easier to probate the copy of a will when all of those who stand to inherit from the deceased are in agreement. If everybody agrees that the copy is a true reflection of the testator’s wishes, then the court is more likely to proceed with probate based on that document.
If there is a disagreement, the answer to the previous question (whether or not the testator has access to the will) may ultimately determine who has the burden of proving their case.
If you’re unable to find a loved one’s original will but you have copies in your possession, take a deep breath. The probate process may have to be a little more complicated, but this sort of thing happens more frequently than you might imagine. Experienced legal guidance can help.