What happens when an individual passes away and no one is able to find the original last will & testament? Can a copy be submitted to the court in its place? If not, how does the court determine who is entitled to the estate property and the appropriate division of the property among the rightful heirs of the estate?

Can A Copy of The Will Be Admitted To Probate?

The general rule is that a true and correct copy of the last will and testament may not be admitted as a substitute for the original will to overcome the presumption that the original last will and testament has been lost or destroyed, except under certain circumstances. The general rule, however, has exceptions.

First, if all of the interested parties agree that the copy of the last will and testament should be admitted for purposes of probate or estate administration, the court may agree to admit a copy of the last will and testament for purposes of probate or estate administration.

What if an heir, or a beneficiary identified in the last will and testament, does not agree that a copy of the last will and testament may be admitted for purposes of probate or estate administration? In that situation, notice will have to be given to all the heirs that do not consent to the Will being filed for probate. Once notice is sent to all heirs, they will have an opportunity to object. From a practical standpoint, this is also the point when someone may come forward with an original Will, or a Will that is more recent.

If all the heirs to an Estate agree that a copy of the Last Will and Testament should be probated, the Court proceeding will likely go as planned and the copy of the Last Will and Testament should be admitted. Conversely, if one or more potential beneficiaries of the Estate object to probating the copy of a Last Will and Testament, the proponent of the copy must demonstrate by clear and convincing evidence that the Decedent either lost or misplaced the Will, did not intend to revoke or destroy it, and that the copy being presented is a true and correct copy of the original and most recent last will and testament.

How Is The Estate Property Distributed If Neither The Original Will Nor A Copy Exists Or Is Not Proven?

If the original Will is not located, and a copy cannot be proven, the Probate will then proceed “intestate”. The assets and liabilities of the estate would then be distributed according to the laws of intestate succession. Under this procedure, a court distributes property according to current state laws. In general, the hierarchy of the distribution scheme is as follows: If the deceased leaves behind children but no spouse, your children will split your intestate property. If the deceased leaves a spouse but no children, the spouse will inherit everything. If the deceased is survived by a spouse and children, in most states the spouse will receive half of the intestate property and the children will receive the other half. If neither a spouse nor children are left behind, the deceased’s parents and siblings, if applicable, will receive shares of the intestate property.

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