In order to begin the probate process of a Last Will and Testament, the court will need to be able to reference the Will.  Typically, the courts will require that the original Will be deposited with the Clerk of the Court.  Along with the Petition for Administration, this is how many probate cases begin. 

What happens then, if the original Last Will and Testament of the Decedent is unavailable?  A typical scenario where this occurs is when the testator (i.e., the person who made the Will) gave copies of the Will to their family but did not tell the family members where the original Will was located.  The Court will not accept the copies of the Will if the original Will can be located.  (Check out Steps to Take to Locate a Missing Will for information on how to locate a missing original Will.)  If after an exhaustive search the original Will cannot be located, will the court accept a copy of the Will?

There is a specific process for Florida probate courts when the only version of the Will available is a copy.

 

What Qualifies as a Destroyed or Lost Will?

In Florida, a testator may revoke their Last Will and Testament by tearing it up, burning it, or rendering it unreadable.  Florida Statutes §732.506.  If the Will was destroyed by the testator with the intent to revoke it, the Will cannot be probated.  The same is true if the testator instructed someone else to destroy the Will in the presence of the testator.  For the purposes of this article, the term “destroyed Will” means that the original Will was destroyed without the instruction or intent of the testator.  Like a lost Will, the easiest path to admitting the destroyed Will is with a copy of the executed original. 

The lost Will term is a little more complex.  In the state of Florida, if the original Will was last in the possession of the testator and it cannot be located, it is presumed that the testator intended for the Will to be destroyed.  If that is the case, the Will cannot be admitted and probated because the testator revoked it as explained above.  This means that the petitioner will need to overcome the presumption that the Will was revoked by providing evidence.  For example, if it can be shown that the original Will was destroyed by flooding or the Will was in a safe deposit box at the bank that cannot be accessed, the court will consider the petition to admit the Will. 

In admitting the lost Will, the court will either admit a copy of the Will that has been verified and testified about or the court may admit the terms of the Will that can be established by testimony as explained below.

Petition to Admit and Probate Lost or Destroyed Will

Similar to the administration of a probate case where the original Will is available, the probate of a lost or destroyed Will begins with a petition. 

Florida Probate Rule 5.510 provides the requirements for a petition to establish and probate a lost or destroyed Will.  The petition to establish a lost or destroyed Will must include the same information as a regular petition for administration, such as the petitioner’s name and interest in the case, the last known address of the Decedent, place and date of death of the Decedent, names of surviving spouse and any beneficiaries.  Florida Probate Rule 5.200.

In addition, a petition to admit and probate a lost or destroyed Will must also include:

  • A statement of the facts related to the request to admit the lost or destroyed Will; and
  • A statement of the contents of the Will; or
  • A copy of the Will if available. Florida Probate Rule 5.510(b).

Who can petition the court to admit and probate a lost or destroyed Will?

According to Florida Statutes section 733.207, “any interested person” may establish the terms of a lost or destroyed Will and present it to the court to be probated. 

Testimony

Aside from just having the copy of the lost original Will, it is required that the testimony of two witnesses be provided.  See, Florida Probate Rule 5.510(c).  The two witnesses must be disinterested in the probate of the estate.  Generally, a good rule for whether a witness is disinterested is whether they would inherit anything from the estate.  If someone would inherit from the estate, then they are not a disinterested party.  If a current copy of the Will is provided to the court, it is only necessary to have one disinterested witness testify.

If the individuals who signed the Will as witnesses are available, they may be good witnesses to provide testimony to the court—so long as they are disinterested in the distribution of the estate.  Another option is to contact the attorney who drafted the Will.  Because they drafted the original Will, they may be a good witness to provide testimony to the court regarding the contents of the Will.

Notice

Before the court can admit the copy of the Will to be probated, the individuals who would have inherited something from the estate if the Will is not admitted must be provided notice.  See, Florida Probate Rule 5.510(d).  The necessary notice may vary depending on the situation.  Usually, if the individuals are known to the petitioner, they must be sent a copy of the Petition to Admit Lost or Destroyed Will. If the individuals who would inherit are unknown to the petitioner or cannot be located, it may be sufficient to publish notice in a local newspaper.

Court Order

After the court has made the determination to admit the lost or destroyed Will to probate, the judge will enter an order admitting the Will which states the terms and provisions.  See, Florida Probate Rule 5.510

Time to Probate a Lost or Destroyed Will

While we generally estimate the length from opening to closing a probate matter between 4 and 8 months, having to admit a lost or destroyed Will to probate will take additional time.  The best way to proceed quickly is by gathering together the documentation you may need to provide to the court.  Your attorney should communicate with you regarding the information, testimony of witnesses and contact information needed for notice. 

If you have recently lost a loved one and know they had a Last Will and Testament but cannot locate the original, you may need to proceed by petitioning the Court to admit a lost or destroyed Will.  If you have questions or would like more information about the process for admitting and probating a lost or destroyed Will, please contact The Probate Law Firm.  We are happy to help you figure out the best and necessary options for proceeding with your probate matter.