Rules If You Lose a Will

by Beverly Bird

The loss of a will can be a trivial matter or a major headache, depending on whether the testator – the individual who wrote the will – is still alive or has died. Prior to death, the solution is simple. After death, the court gets involved and the outcome may depend on your state's particular laws.

Testator's Options

If you misplace your will during your lifetime, you can simply create a new one. Ideally, you would notify your heirs, beneficiaries and trusted friends that you intend your new will to supersede the terms of the lost one. This creates witness testimony in the event anyone locates the first, lost will after your death and tries to probate that one instead. If you change any of the terms of your will when you write the second one, witness testimony could be important if anyone challenges the new one. You can also include a clear statement in your new will that you're revoking all previous wills.

After Death

After you die, if none of your heirs can locate your will, the situation becomes more complicated. The laws in most states presume that you revoked the will by tearing it up or destroying it if it can't be found, even if there's not a more recent will stating that you did so. It becomes up to your heirs to prove to the court that you did not revoke your missing will and that it's genuinely lost, and this might be a challenge.

Copies of Wills

If your heirs can find a copy of your will, but not the original, they may be able to probate the copy. They would have to present evidence to the court to establish that the copy is valid. They might be able to prove a logical assumption that the original was destroyed because the place where you typically kept important papers was struck by fire or some other disaster. Your heirs would typically need at least one witness, such as the lawyer who drafted the lost will or a close relative or friend who discussed the will with you, to vouch that the terms included in the copy reflect your wishes.

Corroborating Evidence

The court might require some additional proof if your heirs can't at least produce a copy of your will. They'd have to substantiate through witness testimony that you never gave any indication of wanting to revoke it. The more testimony and evidence your heirs can produce to indicate the will was lost, not destroyed by you, the more likely it is that the court will respect your last wishes for distribution of your assets. This typically requires at least two witnesses who don't stand to inherit from you, but know who you did want to inherit your property. The witnesses might have to testify that they watched you sign the will, that you were of sound mind at the time you did so, that you discussed its contents with them, and that they were your last wishes.

Intestate Succession

If your heirs can't prove that your will is lost, not revoked, or if no one can give testimony regarding how you wanted to dispose of your assets, the court will usually treat the situation as though you died intestate, without a will. In this case, statutory law determines who gets your property. Laws of intestate succession can differ from state to state, but they're designed with the goal of distributing your assets in the way in which you probably would have wanted. They typically give your assets to your most immediate relatives, usually your surviving spouse and children.