A diligent search for a lost will should be conducted prior to taking any steps to prove the existence of the lost will. The search should include contacting the decedent's attorney and inquiring into whether the attorney has any knowledge regarding the whereabouts of the will. The search should also include the decedent's safe deposit box at his or her financial institution and the decedent's house, especially where any important documents are stored.

Courts may accept a copy of a will if the original will cannot be located. Some courts will accept an original codicil (amendment) to a will even though the original will cannot be found. States have various requirements regarding accepting a copy of a will into probate. For example, some states allow a witness to the original will to sign an oath stating that the copy of the will is a true and correct copy of the will to the best recollection of the witness. If the witnesses to the will cannot be found, then the person named as personal representative, typically called the executor, in the will may be allowed to sign an oath to prove that the copy of the will is valid.

The general rule is that if a will cannot be found, it is presumed that the will was destroyed. However, this presumption can be defeated, in most states, with sufficient evidence, such as:

  • Proof that the testator did not intend to destroy or revoke the will
  • Proof that the testator made and executed a valid will, which met the requirements of state law
  • Proof of the substance and contents of the will
  • Proof that the will cannot be found after a due and proper search

Questions for Your Attorney

  • How do I prove the existence of a lost will in my state?
  • Will my state courts accept a copy of a lost original will?
  • Where can I look for a lost will?