What if an Executor of an Estate Destroys the Decedent's Last Will & Testament?

By Teo Spengler

When a person draws up her will, she may think her work is done. A valid will sets out a road map as to what will happen to her property when she dies, naming beneficiaries and an executor to shepherd the will through probate. However, it is possible that an executor could destroy a will with or without the maker's consent.

Testator Orders Destruction

When someone has second thoughts about her will, she may revoke it as long as she is competent. One way to revoke a will is to destroy it or have someone destroy it while you watch. This person can be the person named in the will as executor or a third party. It is generally more prudent to prepare a new will that explicitly revokes the earlier will.

Executor Accidentally Destroys Will

If an executor takes possession of an original will and accidentally destroys it, the courts generally allow the destroyed will to be probated if a proper showing is made of its contents and authenticity. The executor must establish that the destroyed will was executed according to state law and prove the terms of the will by clear and convincing evidence. This is most effectively done with a photocopy of the will but witness testimony can also be sufficient.

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