Can You Probate a Missing Will?

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June brings the end of the school year and the beginning of summer. JGB just celebrated its 9th birthday and we hope all our clients and friends are all doing well and are enjoying the Virginia spring.

Note to our professional advisor friends: Please ‘save the date’ for JGB’s annual three-hour CE class this fall on the following afternoons (details to follow later):

September 12: Virginia Beach

September 19: Richmond

September 26: Williamsburg

Can You Probate a Missing Will?

The probate process typically begins when an executor brings the original will to the county courthouse and the court admits the will to record. What is an executor to do when the original will can’t be found?

If a person begins the probate of an estate without a will, they then serve as an ‘administrator’ and are charged with distributing the estate according to the default rules of intestacy law. ‘Intestate’ means lacking a will and testament. In many cases, the intestate heirs are the desired heirs, particularly in families in which there is only one marriage and one set of children. In cases where a person had children with more than one partner or when a person has no children, the default rules seldom fit the desires of the decedent.

When a will is missing and the default intestate succession is not desired by the survivors, the next step is to scour the home, storage locker, professional advisors’ offices, etc., for the missing will. I was once the administrator of an estate once in which the disinherited (by state default law) nieces and nephews diligently searched through a cavernous storage locker for a year before unearthing a missing will which increased their share from nothing to half the estate. A will found after a probate has started is still the valid will and does control the distribution of the estate.

When the original will can’t be found but the executor has a copy, the copy can be admitted in certain circumstances. The person who wants to admit the copy of the will is called the ‘proponent’ of the will. He or she must prove to a judge by ‘clear and convincing evidence’ (which is a high standard) that 1) the will existed and was legal, 2) he or she can prove the contents of the will, and 3) that the will was lost or destroyed, but not destroyed by the person who wrote it in an attempt to revoke it. The first two points are easily proven with a photocopy. Much of the case law behind these policies predates the common use of copiers we now enjoy. The third part is the interesting point. If a will was lost in a situation in which the creator of the will (‘the Testator’) had full control, then the will is presumed to be revoked and the proponent must show by clear and convincing evidence that the will was not revoked, but merely misplaced. If the will was held by another party such as the drafting lawyer and was lost, then the missing will is presumed not to have been revoked.

Occasionally, most of the original will is present, but a page or two is missing. In such a situation, the proponent can either ask the judge to admit the missing pages as if the will were a copy or ask the court to admit the pages that remain as a complete will if the remaining pages clearly show the intent of the testator as to who receives the property after death.

While we at JGB always recommend hiring an attorney to assist with an estate, this advice is even more important in cases where the will is missing or incomplete. If you find yourself in such a situation, do not panic- simply call for help!

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