When there is a will but it can’t be found

7 min read

What happens if you can’t find the will?

  • If you have a copy of the will but not the original, you can present it to the court.

  • You will have to prove that it was not revoked, and the will’s witnesses and others may need to testify.

  • If there is no copy, the standard of proof will be even higher.

  • In some states, you may be able to get the family to agree to follow the missing will.

  • If the missing will is not recognized, the estate will be distributed as if there is no will.

If your loved one wrote a will before they passed away, they will have named an executor for their estate. That person will be tasked with the process of settling all of your loved one’s debts and distributing their assets according to the instructions laid out in the will.

That becomes much harder to do, however, if the will has gone missing. The original document is required by the probate court, which must authenticate it before the executor can be authorized to fulfill its wishes. The default presumption held by the court is that if the original will is missing, it is because the person revoked and destroyed it.

While in some cases that may be true, in others it is decidedly not. Wills go missing for other reasons such as fire or flood, or you may simply if frustratingly be unable to find it no matter how hard you look. 

If this describes your situation, you’re in a tough spot. You want to fulfill your loved one’s wishes, but legally you cannot do so without the actual will, even if you know precisely what they wanted. There is some hope, however: The absence of an original will can stall the settling of the estate, but there are methods that can let the process continue. These workarounds take time, but they may allow your loved one’s wishes to be executed in the manner they desired. 

When you lack the original will, but you have a copy

If an extensive search of your loved one’s house and office fails to find an original will, see if there are copies to be had. Probate courts may accept a copy, provided you can prove a number of things in a court hearing. Typically the executor or a lawyer for the estate will be the one to approach the court about this matter.

The first thing you will have to prove is that your loved one did not revoke the will, and that its absence is due to something else, like a fire. You will likely have to provide proof of such a disaster. 

The probate court will also want proof, if it exists, that your loved one had no intention of revoking their will. In some states, such evidence might be a written reference they made to its existence in another recent document. Elsewhere, the court may admit hearsay evidence from witnesses that your loved one spoke of an existing will. 

If the copy of the will was made after it was signed, the court will want proof that your loved one’s signature is real, as well as the signatures of the two witnesses. Otherwise, such as in the case of a digital file of the will, the judge may ask the witnesses to testify that they signed the original copy and that your loved one signed it themselves according to correct procedures. The court might also require the attorney who drafted the will, the secretary who typed it up, or another official to affirm that the copy presented is a copy of the valid will.

You should definitely consult an estate lawyer in the state where the probate court is located to guide you through this process. Also, keep in mind that getting a probate court to accept a copy of a will may take a very long time, potentially years, if your loved one’s estate was large or complicated.

No copies of the will

Sometimes neither the original will nor a copy can be located. In some states, the law will still allow the court to determine whether they can proceed with the supposed contents of the missing will, but the requirements for this will be much more strict than if there is a copy. 

The probate court will want proof that your loved one had no intention of revoking their will.

The witnesses will be required to testify, and they need to remember the details of the will in great (and non-conflicting) detail. Their testimony will likely be examined very closely and any issues the court finds can be grounds for disqualifying the missing will.

If the missing will can’t be proven

If a copy of the will is not validated, or the testimony of witnesses to a completely missing will’s existence is not accepted by the court, there still may be an option in some jurisdictions to honor the will’s contents. In this case, you will have to have all of your loved one’s beneficiaries named in the missing will, as well as anyone who would have inherited their estate if there was no will, sign affidavits or otherwise legally represent that they are agreeing to abide by the provisions of the missing will. If one of these parties objects, however, the court will generally treat the estate as if there is no will.

In any case where the will is missing and proof of (or agreement to) its existence is not validated, legally it will be as if no will had ever been created. The court will appoint an administrator rather than an executor at its own discretion, usually one of the person’s closest relatives. This administrator will then be responsible for distributing the assets according to state laws that govern who gets what when there is no will, known as intestacy laws. These laws have no connection to what your loved one may have wanted, but simply divide up the estate between living relatives in a set priority order.

These laws, as well as all the rules regarding what happens with a missing will, can vary a great deal from state to state. If you cannot find your loved one’s will, consult with an estate attorney in the state where your loved one lived to get specific guidance about what your next steps should be.

Whether the will can be found or not, settling an estate can take a toll on your spirits and energy, and exacerbate tensions within your family. Be kind to yourself and understanding toward others as you go through this process. It will take as long as it needs to, and your primary focus should be on maintaining your own well-being and the harmony of your family as you deal with the legacy your loved one left behind ●