All is not lost in Florida when a Last Will and Testament has been lost or destroyed. There is a procedure where a copy of the Will can be admitted to probate by filing a petition to establish the lost or destroyed Will along with other requirements discussed below.
Under Florida law, if a Will cannot be found there is a presumption that the testator (maker of the Will) destroyed the Will in order to revoke it. In order to probate a missing Will, it is necessary to prove that the testator did not revoke it. This can be done by showing the court that the Will was lost or destroyed without the testator’s consent, or with evidence that the testator did not have the capability to revoke the Will while it was in his or her possession.
The petition to probate the missing Will must contain a copy of the Will or its substance and an oath from two witnesses who do not have an interest in the petition’s outcome must be filed with the Court. If there is a correct copy of the Will, that takes the place of one witness. If the copy does not have the testator’s and witness’s signatures, it can still be admissible as evidence of the Will’s contents.
The attorney for the estate will have to send formal notice of the hearing to all persons with interest in the Will. All testimony at the hearing will be put in writing in the event of any future contests to the Will. If only a portion of the Will can be established, that part will go through probate unless it is unintelligible and incapable of interpretation on its own.
Establishing a lost or destroyed Will is possible, but not always easy. Make sure the Florida probate lawyer you hire is well versed on the latest Florida probate case law and procedure.
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