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What Happens In a Florida Probate When the Original Will Cannot Be Located

Consider this scenario, your Father died, and you cannot locate the original of his Last Will and Testament. You think that the original has been lost or misplaced. You Father never expressed to you or anyone else any intention to revoke or change his Will.  It is unusual for a lost Will to have been intentionally destroyed by the decedent before death. Fortunately, the failure to locate the original of the Will does not mean that your Father’s Will cannot be probated.   This issue is rather complicated, and you should seek the assistance of a knowledgeable and experienced Florida Probate and Estate Planning Attorney to assist you.

Section 733.207, Florida Statutes provides that: “Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proven by the testimony of two disinterested witnesses, or, if a correct copy is located, it shall be proven by one disinterested witness.”

Florida Probate Rule 5.510, provides that the establishment and probate of a lost or destroyed will shall occur in one proceeding. The Petitioner requesting the probate must file a petition that includes a statement of the facts constituting grounds on which the specific relief is sought.  The Petition must also include a statement of the contents of the will or, if available, a copy of the will.

Therefore, if you cannot locate your Father’s original Will, you will need to file a copy of that Will with the court, and locate one of the witnesses that saw your Father sign the original Will. Once you locate the witness, they will need to sign an affidavit stating that the copy of the Will is an accurate copy of your Father’s original Will.

It is the responsibility of you, as the petitioner to prove the terms or contents of your Father’s missing Will. You are required to demonstrate to the Probate Court that your Father’s Will is not missing because he intentionally destroyed it as an act of revocation of the Will. In Florida, there is a presumption that if the original Will is missing, the decedent destroyed it. That presumption must be overcome by the petitioner. Again, you will want to seek the advice of a knowledgeable and experienced Florida Estate and Probate Attorney to properly guide you through that process.

Many Florida courts have held, that the presumption of the deceased’s revocation of the Will can be rebutted in four ways:

(1) Evidence that a person with an adverse interest and the opportunity, may have destroyed the will;

(2) Evidence that the will was accidentally destroyed;

(3) Evidence that the original Will had been seen among the decedent’s papers after his/her death; and

(4) Evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the Will.

The contents of a lost or destroyed Will are only admitted into probate in Florida if the probate court makes a finding that the above noted presumption has been overcome.  If your Father’s original Will is not located, and a copy cannot be proven, the Probate will then proceed intestate as if his Will never existed. This is why it is extremely important to securely place your Estate Planning documents in a location, that if you no longer can locate them, someone you trust has access to those documents.

To learn more about this or other Probate matters, you should seek the assistance of an experienced and knowledgeable Florida Estate and Probate Attorney to assist you. To discuss this matter, or other Guardianship and Probate Administration matters, please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7620, and visit my website at www.AnnMarieGildenLaw.com.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create any attorney client relationship.