How to Probate a Lost or Destroyed Will
Unfortunately, many people do not tell their loved ones where to find their original Will or other testamentary documents (NOT COPIES!). This can be a big problem! The original Will is very important in Florida. Without the original will it may be very difficult or even impossible to ensure the last wishes of the decedent are followed.
This is because in Florida, the law states that a Will may be revoked by the testator (the person whose Will it is) at any time by burning, tearing, canceling, defacing, obliterating, or destroying the original Will. F.S. 732.506. Of course, an original Will may simply be lost without the testator having any intent to revoke it; but after the death of the testator, how would we know what he or she had intended? For this reason, the Florida courts have determined that if the original Will is missing it is presumed that the testator DID intend to revoke the Will. In re Washington’s Estate, 56 So.2d 545, 545 (Fla. 1952). This means that there must be a showing of evidence that the testator did NOT intend to revoke the Will for the Will to be probated.
Okay, so a loved one has passed and in going through the decedent’s things you find copies of a Will but you cannot find the original Will anywhere. What is you plan of action?
First, gather as much evidence as possible to prove that the Will you found copies of was (1) the last Will signed by the decedent, and (2) not revoked by the Decedent. Search through ALL of the Decedent’s belongings to make sure the copy of the Will you have is the newest Will signed by the Decedent. During this search, if you find a copy or original of an older Will KEEP IT – it may be necessary if the court refuses to recognize the newest Will copy. Continue searching through the Decedent’s documents looking for anything that would show the Will you have a copy of is how the Decedent wanted the estate distributed – letters, e-mails, notes, etc. Contact anyone the Decedent may have discussed the distribution of the estate with – family members, close friends, attorneys, etc. Take good notes about anything and everything you find!
Second, find a knowledgeable and experienced probate attorney. Bring this attorney the Will copy and all the evidence you’ve been able to locate. At that point, a probate attorney with sufficient knowledge should be able to tell you the chances of success.
Third, your attorney will file a petition in the appropriate probate court. The process and rules governing the establishment and probate of lost or destroyed will may be found in F.S. 733.207. All interested parties (anyone with a potential interest in the estate) must be noticed of the petition. It is highly likely that a hearing will be required. This is when you would go with your attorney to court and present your evidence to show that the copy of the Will is a correct and accurate copy of the original and that the testator did NOT revoke it. All interested parties will have to be noticed of this hearing and given the opportunity to appear and present their own evidence as well.
The Judge will then take all the evidence into consideration and give a ruling. Likely, the ruling will not be given on the same day as the hearing and all parties will have to wait until the ruling is made.
If you find yourself in this or another similar situation, the Preston Law Firm has the knowledge and experience to assist you. Timing is critical, CLICK HERE to contact us today.
Side Note for Attorneys:
The statute referenced a “correct copy.” This may be confusing if it is the first time you’ve seen this term. The Court’s opinion in In re Estate of Parker, 382 So.2d 652 (Fla. 1980) discusses what a “correct copy” is in detail. In the end, the Court defines a “correct copy” as any “copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.” In re Estate of Parker, 382 So.2d 652 (Fla. 1980).