We hear it all too often… “The original signed will is missing. I know it was in that box. I saw it. It had been there for years!” Usually by the time a last will and testament has been determined to be missing, every possible heir to the estate is in an uproar, and the decedent’s house has been turned upside down from frantic searching. Panic ensues and everyone wants to know how this is going to affect their inheritance.
The first step a party should take in locating a missing will is to determine if it was drafted by an attorney. If so, and that attorney can still be located, contact he or she immediately to see if they possible kept the original copy in their office. Many times an attorney will keep the original signed document and send a photocopy home with the client. If the document was not drafted by an attorney, be sure to contact any and all family members and friends who could have any knowledge of whether the will was revoked, or simply relocated.
If a copy of the signed document can be located, there is the possibility of it being honored by the probate court. However, there are several steps that an executor will need to pursue in order to prove to the court that all rightful heirs are in agreement with the copy being admitted as the valid will. If just one heir contests admittance of the copy, a hearing will be scheduled before a probate judge who will ultimately decide its validity. It is highly recommended to consult with a probate attorney prior to filing a petition to probate an estate if the original will is missing.
If neither an original will nor a copy can be located, the probate court will consider the estate “intestate“, and assets will be distributed to heirs based on state probate code. Rules differ in each state.