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
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.
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.