If a parent has made out a will but then accidentally destroys it, does the state or attorney (who wrote up the will) keep a copy of it? Thank you!

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If a parent has made out a will but then accidentally destroys it, does the state or attorney (who wrote up the will) keep a copy of it? Thank you!

My mother in-law wrote a will several years ago but kept it at home. Three years ago, she developed dementia and started randomly throwing papers out of her house into the garbage. She’s in the nursing home now but neither my husband or his brother knows if there’s a copy of the will around. Any suggestions? Thank you!

Asked on June 17, 2009 under Estate Planning, Minnesota

Answers:

L.M., Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Yes, typically the attorney who prepared the will keeps a copy.  I'm not certain what the probate court would do with this one.  One of the ways of revoking a will is to physically destroy the original. Your mother-in-law's act of throwing it away could be seen as destruction of the original and there would have to be some convincing evidence that she did not actually intend to do that, such as testimony of her physician that she was suffering from dimentia.  If it can be proven that it was unintentional and the attorney kept a copy, it might work out.  If there is no copy, she will likely be viewed as having died intestate, or without a will.  Then her assets will be distributed according to the intestacy laws of the state where she lived.  Usually, that means that a portion goes to her surviving spouse, if any, and a portion to her children, and then down the line if there are no surviving chldren.


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