What Happens If Your Original Will Is Lost or Destroyed?
- Sep 14, 2017
- 3 min read
Updated: Jul 7
Florida residents know all too well that hurricanes, floods, fires, and other disasters can destroy important documents.
So what happens if a loved one dies and no one can find the original Last Will and Testament?
Fortunately, a lost or destroyed Will does not necessarily mean the decedent died intestate. Under certain circumstances, Florida law allows a copy of a lost Will to be admitted to probate when the original will has been destroyed or is lost.
Florida's Presumption of Revocation
The first hurdle is overcoming an important legal presumption.
If an original Will was last known to be in the possession of the testator but cannot be found after death, Florida law generally presumes that the testator intentionally destroyed the Will with the intent to revoke it.
This is only a presumption, however, and it can be overcome with sufficient evidence.
How Can the Presumption Be Rebutted?
The person seeking to probate the lost Will must present evidence showing that the Will was not intentionally revoked.
Examples include:
The testator lacked the physical or mental ability to destroy the Will because of illness, incapacity, or hospitalization.
The Will was accidentally destroyed in a fire, flood, hurricane, or other natural disaster.
The Will was lost or destroyed without the testator's knowledge or consent.
Other facts demonstrating that the testator intended the Will to remain in effect.
Each case depends on its own facts, and the court will evaluate all of the available evidence.
Why Is a Copy of the Will So Important if the Original Will is Lost or Destroyed?
The easiest way to establish the contents of a lost Will is by producing a copy.
Florida law allows a copy or other competent evidence to establish the contents of a lost or destroyed Will when the statutory requirements are satisfied.
Without a copy, proving the exact terms of the Will becomes significantly more difficult.
Witness Testimony May Be Required
In many cases, testimony from individuals familiar with the execution or contents of the Will is necessary.
Depending on the circumstances, Florida law may require testimony from disinterested witnesses or other evidence sufficient to establish the validity and contents of the lost Will.
An experienced probate attorney can determine what evidence will be necessary in a particular case.
How We Help Protect Our Clients
One of the goals of a well-designed estate plan is to ensure that your documents can be located and admitted to probate—even if the originals are lost or destroyed.
When preparing estate planning documents, we take several steps to reduce the likelihood of future problems:
✓ We supervise the proper execution of every Will.
✓ We provide qualified witnesses and a notary for each signing.
✓ We retain the names and contact information of the witnesses in our files.
✓ We provide our clients with the original signed documents.
✓ We provide electronic copies of the signed documents for safekeeping.
✓ We securely maintain copies of signed documents in our document management system, allowing us to retrieve them if a client's originals are ever lost or destroyed.
Don't Assume a Lost Will Cannot Be Probated
If you cannot locate a loved one's original Will, do not assume that the estate must be administered as though no Will exists.
Florida law provides procedures for admitting a lost or destroyed Will to probate, but strict legal requirements apply. Acting quickly and gathering available evidence can make a significant difference in the outcome.
If you believe a Will has been lost, destroyed, or damaged, consult an experienced Florida probate attorney to determine the best course of action.
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