Missing Wills

When an individual dies and it is believed her or she had signed a will, but it cannot be found, two basic questions arise. Is the will missing because the deceased intentionally revoked it, or alternatively, was the will destroyed or misplaced without the intent to revoke?

By law, a revocation of the will may be accomplished simply by tearing up or destroying the document. It will be necessary to carefully examine the specific facts and circumstances of why a will cannot be found following an individual’s death. If it is determined that the will was indeed intentionally destroyed, the laws of intestate succession apply. These are the laws that determine to whom the deceased’s property passes when there is no will. You will find an earlier blog in this series describing the laws of intestacy.

In some cases, the deceased may have signed multiple wills. These cases are more complicated because under state law the destruction of any will may revive an earlier will that is discovered. This is often the case if the subsequent wills do not specifically say that all earlier wills are revoked.

Alternatively, a will may be missing not because the individual intended to revoke it, but rather because of a fire or destruction of the place where the will was stored. If it is proven that this occurred, the probate court may accept a photocopy of the will or a computer file from the deceased’s lawyer. This also requires proof that the deceased properly signed the original will.

The procedures required to admit a photocopy of a will to a probate court will vary under state law, but in most cases an affidavit from the individuals who witnessed the individual sign his or her will must be prepared by a knowledgeable estate planning attorney. When photocopies are probated, potential heirs must respond promptly to raise any questions or concerns because the time limit to contest is very short. In most states, contests must be filed within three months after the photocopy is filed with the court. Consequently, heirs should consider enlisting the services of an attorney with estate law knowledge in this process.