What happens if someone dies and his will is missing?

UPDATED: Jul 17, 2023Fact Checked

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Jeffrey Johnson

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 17, 2023

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UPDATED: Jul 17, 2023Fact Checked

A missing will can raise all sorts of interesting legal issues which often turn on the specific facts and circumstances, and the law of the state in which the deceased resided.

The will may be missing because the deceased intentionally revoked it, in which case, an earlier will (if it hadn’t been revoked also) or the state’s rules on ’Intestate Succession’ (the law that says where property will go if there isn’t a will) would determine who gets the deceased’s estate. So, if the deceased made an earlier will, made a second will without destroying or saying she was revoking the first will, and then destroyed the second will, the first will would be valid. If the deceased made only one will or specifically revoked the first will in her second, there would be no valid will if the current will was revoked, and the deceased estate would pass according to state law.

Alternatively, the will may be missing because it can be proven that the will was stored in a bank vault that was destroyed in an explosion and fire. In that case, the probate court may accept a photocopy of the will (or the lawyer’s draft or computer file), together with evidence that the deceased duly signed the original.

A person trying to get a photocopy of a will admitted for probate might ask other possible heirs to agree to this, but the other parties have no obligation to do so. If a will is missing or a photocopy, but no original, is produced, the potential heirs should see an attorney as soon as possible to protect their interests. Each state has its own laws as to when a copy is acceptable if the original cannot be found. Very often when an old original cannot be found, it is because the person made a later will. Other times the person decided that he or she did not want the will to take effect and just destroyed it. If you think there is an original will somewhere, look everywhere possible to avoid the question of probating a copy.

The reality is that matters like this are often settled, with some sharing of the estate between the claimant named in the “lost will” and the heirs at law. One key issue will be how serious both sides appear and how hard they are willing to fight. It may also depend on the amount of assets involved. If this is a $10 million estate, everyone knows a lot is at stake—and thus there would be a lot to gain or lose, while if the estate is only $5,000, any legal bills will rapidly eat away the amount involved.

Case Studies: Missing Wills and Their Legal Implications

Case Study 1: Revoked Will

In this case, the deceased intentionally revoked their will. If there is an earlier will that was not revoked, it would determine the distribution of the deceased’s estate. For instance, if the deceased made a first will, created a second will without revoking the first, and subsequently destroyed the second will, the first will be considered valid. However, if the deceased only made one will or explicitly revoked the first will in the second, there would be no valid will if the current will was revoked, and the estate would pass according to the state’s laws of intestate succession.

Case Study 2: Lost Will Due to Destruction

Sometimes a will may go missing due to external factors, such as a catastrophic event. Let’s consider a situation where the deceased’s will was stored in a bank vault that was destroyed in an explosion and fire. In such cases, the probate court may accept a photocopy of the will, the lawyer’s draft, or even a computer file as evidence, as long as it can be proven that the deceased duly signed the original.

Case Study 3: Photocopy of a Missing Will

When an original will cannot be found, potential heirs may attempt to admit a photocopy of the will for probate. However, other parties are not obligated to agree to this arrangement. Each state has its own laws regarding the acceptability of a copy if the original cannot be located. If a will is missing or only a photocopy is produced, it is crucial for potential heirs to consult an attorney promptly to protect their interests.

Case Study 4: Negotiating Settlements

In some cases, matters surrounding a missing will are resolved through negotiations between the claimant named in the “lost will” and the heirs at law. The outcome often depends on the seriousness and determination of both parties, as well as the value of the estate involved. While significant assets may motivate a fierce legal battle, smaller estates may not justify the expenses incurred by protracted litigation.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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