What happens if someone dies and his will is missing?

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The will may be missing because the deceased intentionally revoked it, in which case, an earlier will (if it hadn’t been revoked also) or the state’s rules on ’Intestate Succession’ (the law that says where property will go if there isn’t a will) would determine who gets the deceased’s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only one will or specifically revoked the first will in her second, there would be no valid will if the current will was revoked, and the deceased estate would pass according to state law.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.