What Happens When You Can’t Find the Will?

Posted By on November 18, 2015

Probating Lost Wills in Florida

No one likes to think about dying, and it’s not easy for many of us to sit down and deal with planning for death.  Still, most families have some sort of estate planning in place, even if it’s only a life insurance policy.

Many people do plan ahead with a finalized Last Will and Testament to explain how they want their property distributed after their death as well as naming who they want to oversee the process (I.e., their “Personal Representative”). Lots of new parents, for example, will write their wills after their first child is born, to make sure the baby is protected should something happen to them.

 
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And there will be occasions when family members do discuss their last wishes with loved ones; lots of these chats are going to take place now, during this holiday season. Who gets mother’s fine china may be talked about over Thanksgiving. Where are the stock certificates and personal papers may be discussed between father and son after lighting the menorah or while watching one of the 13 NFL games scheduled for Sunday, December 27th (that’s right: 13).

Which means that most family members will share their plans and when the time comes, everyone will understand what Dad wanted or what Grandma’s final wishes are. And they will know that there is a Last Will and Testament to be located and submitted for probate.

But what happens if the family cannot find the Will?

You know it exists, but it’s not where it should be. What can you do then?

Florida Law for Families Who Cannot Find the Last Will and Testament

These are not situations where someone is hiding the will or has destroyed it, in order to better themselves in an inheritance. We’ve discussed that situation in a prior post.

Here, families are grieving and now frustrated because no one can locate the document. No one is contesting it exists; no one wants to challenge what it provides. It is simply not where it’s supposed to be, so there’s not a document to present to the probate court.

Here, Florida law helps families to reestablish the lost will. There will be legal hurdles to jump. Evidence will be needed, and certain procedural rules followed – but it can be done.

It can be very important for families in most situations to try and clear these hurdles and reestablish the lost will for several reasons:

1. because if there is no will, Florida’s intestacy laws may kick it to control who gets what;
2. a prior will, maybe many years old, may otherwise control; and
3. someone may decide they want to fight the resulting plan of distribution in an adversary proceeding.

Steps to Probate a Lost Will in Florida

The first of these hurdles is to overcome the assumption that it was intentionally tossed by the decedent. In Florida, there will be a legal presumption that a will known to exist and in the possession of the testator which cannot be found has been destroyed by the person who wrote it. It is the job of the person who is the proponent of the lost will to prove this isn’t what happened. See, In re Estate of Yost, 117 So.2d 753 (Fla. 3d DCA 1960).

Evidence It Wasn’t Intentionally Destroyed

How can they do this? By bringing witnesses and documents to court that show things like:

(1) the testator wasn’t capable of revoking the will while it was in his possession (maybe he was sick); or
(2) facts that show the will was lost without the decedent’s approval or consent (maybe the house got flooded and now, it appears the will got thrown out in the debris).

Copy of the Lost Will

Key here is to provide the court with a copy of the original will: a copy of the will, or its substitute. Florida Probate Rule 5.5 10(b). As one court explained, that copy may be the “best evidence available” as to the original will’s contents. Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940).

Two disinterested witnesses who saw that will being signed need to testify, too. Disinterested means they aren’t going to inherit anything if the lost will is admitted to probate. And they both have to give sworn testimony, confirmed in a writing that’s filed in the court record, that the copy is a true duplicate of the original that they saw being signed.

Once the legal presumption has been countered, then the lost will can be admitted to probate via the copy that has been provided. Probate of the duplicate can be granted now, assuming that there has been formal notice on those who, but for this Lost Will, would be entitled to inherit.

The Sister’s Lost Will and its Carbon Copy

For instance, in the case of Silvers v. Estate of Silvers, Mrs. Silvers passed away and left her home as her principal asset. She made a will that left her sisters as her beneficiaries, and she kept the original will while mailing her lawyer a carbon copy. When she died, all her papers and belongings were searched — by one of her sisters, as well as her lawyer and his secretary. No one could find that original will.

So, an administrator was appointed for her estate and Florida intestacy laws were going to be applied. Then, seven months later, the lawyer’s office found the carbon copy of the will in his files with the letter from Mrs. Silvers that accompanied it. This was filed with the court. Next, her sister Julia testified that Mrs. Silvers had told her about the will and who witnessed it. The carbon copy was deemed credible by the probate judge and it was used instead of the lost will and admitted to probate.

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Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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