What Happens in Florida if You Don’t Have the Original Will?

Imagine that you are left in charge of a loved one’s estate after they pass away. Although you are aware that they have a Last Will & Testament, you are unable to locate the original. What happens next? In Florida, the original copy of the decedent’s Will must be submitted to the clerk of court in the county where the probate is taking place. 

If the original is misplaced or destroyed, you can still verify the exact contents of the Will by presenting an accurate copy and obtaining the evidence of one unbiased witness to attest to its authenticity. 

With the help of an experienced Florida probate attorney at Farshchian Law, you can overcome the challenges relating to a lost original Will.

Starting a Probate with a Copy of the Will

If the original Will cannot be located, you can use a correct copy of the Will to open the probate estate. Only the testimony (and oath) from one disinterested witness is required to prove the Will if you have a correct copy of the Will. 

A “correct” copy of the Will is an identical copy of the original Will that was signed by the deceased. Under Florida Statutes Section 731.201(23), a “disinterested witness” is a person who has no stake in the outcome of the probate proceeding.

What if There is No Copy of the Lost Will?

If there is no copy of the Will available, admitting the “Will” to probate becomes more challenging for various reasons:

  • To establish a lost Will, two witnesses are needed. 
  • It could be challenging to find or identify the witnesses who signed the original Will. 
  • The two witnesses must be able to establish the contents of the Will as accurately as possible.

Apart from the above-mentioned matters, if the original Will, which was last known to be in the Testator’s possession, cannot be found at the time of the Decedent’s death, Florida law presumes that the Testator revoked the Will.  

As a result, the burden of proof now transfers to the personal representative or any party attempting to prove the Will to demonstrate that the testator did not revoke it by intentionally shredding, burning, or destroying it in any other way. 

What Happens if the Lost Will Cannot be Proved to the Probate Court?

It becomes extremely challenging to have the contents of the Will admitted into probate in Florida if you cannot locate the original or any copies. In such cases, the distribution of the estate may have to follow Florida’s intestacy laws.

While losing the original Will presents challenges, Florida law offers a pathway. Next, we explore what happens when no Will is present at all or if the lost Will cannot be proved, known as “intestacy”.

Understanding Intestacy: When There’s No Will in Florida

The legal word for passing away without a valid Last Will & Testament is intestacy. The laws of intestacy determine who can inherit from an estate, although they may not entirely reflect the deceased’s preferences or personal relationships. 

Intestacy can change the way an estate is handled. Let’s break down how Florida’s intestate laws specifically dictate the distribution of assets.

Decoding Florida’s Intestate Succession: Who Inherits What?

In Florida, if a person passes away without a valid Will, Florida’s intestacy statute dictates how the deceased’s assets will be distributed. This is not always an easy task, but it can be in certain situations. An overview of how the intestate laws determine how assets are distributed among the deceased’s remaining family members is provided below.

A deceased’s estate under Florida’s intestacy laws can be distributed to a single individual or to a group of individuals.

  • If the deceased leaves children but no spouse, everything will go to the children.
  • The surviving spouse will inherit everything if the deceased leaves behind no children, grandchildren, or great-grandchildren.
  • If the deceased left children from a prior marriage or relationship, the children will inherit half of the estate and the deceased’s spouse will inherit the other half.
  • If the deceased leaves behind siblings without a spouse, descendant, or parents, the siblings inherit everything.
  • If the deceased leaves behind surviving parents but no spouse or descendant, the parents get everything.

Expert Legal Support for Probate Challenges in Florida

It can be difficult to probate a lost Will in Florida, but you don’t have to do it by yourself. Our team of skilled and knowledgeable probate attorneys at Farshchian Law can assist you with handling the probate process and guaranteeing that your loved one’s wishes are carried out.

At Farshchian Law, our probate team has successfully handled hundreds of Florida probate cases over the years, and we can also help you to efficiently navigate the Florida probate process. To schedule a free consultation or learn more about our probate services, call us at (800) 604-1871, or use our secure online contact form. We handle probate, real estate, and estate planning matters throughout the State of Florida.