What happens if you don’t have the original Last Will and Testament in a Florida Probate?

What do you do when the original Last Will and Testament is not available to be filed with the court during the Florida probate process? Imagine you’re in this all-too familiar and difficult situation: Your dad has just passed away, and no matter how hard you search, you can’t find his original Will. It’s tough to handle, but remember, it’s a problem that can be solved.

In this blog post, our Florida Probate experts at Farshchian Law will guide you through the process of probating a lost or destroyed will in Florida and explain why you need a knowledgeable and experienced Florida Probate Attorney to handle this serious problem.

Initiating the Probate Process for a Lost or Destroyed Will

According to Florida law, anyone who is interested in the estate of the deceased person can try to prove the full and precise terms of a lost or destroyed will and offer it for probate. Probate is the legal process of settling the estate of a deceased person and distributing their assets according to their Will (or according to Florida intestacy laws if they did not leave a Will). 

To prove a lost or destroyed Will, you need to follow the rules in Florida Statutes section 733.207 and Florida Probate Rule 5.510. These rules require you to do the following:

  • Provide a statement of the facts and the contents of the Will, or a copy of the Will if available.
  • Provide the testimony of two witnesses who are not related to the case and who know what the Will said, or, if a correct copy is provided, the Will can be proved by the testimony of one disinterested witness.
  • Give formal notice to those who would inherit the property if there was no Will. This is to prevent any disputes or challenges to the Will from other potential heirs.

When No Will is Available

If you cannot find the will, including any copies, you will have a much more difficult time proving the will and admitting it to probate in Florida for several reasons:

  • To establish a lost Will, two witnesses must be present. 
  • It may be difficult to identify or locate the witnesses who were present at the signing of the original Will.
  • The two witnesses must be able to establish the terms of the Will to the best of their ability.

Proving a Lost or Destroyed Will through Hypothetical Cases

Example: Let’s say John Doe’s original Will is lost. His family wants to figure out what was in it. They search and find two disinterested parties who saw John sign his Will. These people come to the probate court and tell what they remember about what the Will said. This helps put together the missing pieces of the Will.

Duties and Rights in Lost or Destroyed Will Cases

In cases involving lost or destroyed wills, the roles and responsibilities of different parties become highly important:

  • Personal Representative: The personal representative has the duty to diligently search for the will, safeguard the estate’s assets, and ensure proper administration. They must also adhere to legal requirements for notifying creditors and beneficiaries.
  • Beneficiaries: Beneficiaries have the right to be informed about the probate proceedings. They can also challenge the personal representative’s actions if they believe the estate is not being handled appropriately.
  • Creditors: Creditors have the right to file claims against the estate to recover debts owed by the decedent.

Overcoming the Presumption of Revocation in Florida

In Florida, when the original Will is missing, there’s a legal presumption that the decedent intentionally destroyed it. To admit the Will to probate, this presumption must be overcome by the petitioner. This challenge persists regardless of whether a copy of the Will is available. Therefore, to proceed with probate, it’s essential to counteract this presumption of revocation, even when a copy of the Will is at hand. 

According to Florida law, there are four key ways to overcome the presumption of revocation:

  1. Presenting evidence of a conflict of interest, suggesting someone had the opportunity and motive to destroy the Will.
  2. Providing evidence that the Will’s destruction was accidental.
  3. Showing that the original Will was discovered among the decedent’s documents posthumously.
  4. Demonstrating evidence that the deceased lacked the mental capacity to revoke the Will, perhaps due to insanity.

If the probate court is convinced that the presumption of revocation has been successfully contested, the contents of the lost or destroyed Will can be admitted into probate. Without the original Will, and in the absence of a copy, probate proceedings will operate under the assumption that no Will existed. This highlights the importance of storing your original Estate Planning documents securely, in a place accessible to someone you trust, in case they are needed.

Contact our Florida Probate Attorneys Today!

Probating a lost or destroyed will in Florida can be a complicated task, but you don’t have to do it alone. At Farshchian Law, we have a team of experienced and knowledgeable probate attorneys who can help you handle the legal process and ensure that your loved one’s wishes are honored.

Whether you have a copy of the Will or not, we can help you prove it to the probate court and avoid any disputes or challenges from other potential heirs. For a free consultation on your probate matter or to learn more about our probate services, call us at (800) 604-1871, or email us at Probate@JFRealEstateLaw.com. We handle probate, real estate, and estate planning matters throughout the State of Florida.