What Happens if the Will Cannot Be Found After the Testator’s Death?

If a Last Will and Testament cannot be found after the testator’s death, things can get complicated quickly. In some cases, people who write a will share their plans and final wishes with their loved ones.  For this reason, beneficiaries named in the will know that the document exists and may even know the contents of the will. But what happens if the will cannot be found after the testator’s death?

Is it possible to probate a lost will in Florida?

If the personal representative or the testator’s surviving family members cannot find the will, there is simply no legal document to present to the probate court to admit to probate.

Fortunately, Florida law allows surviving family members to probate the lost will. While it is possible to probate the lost will in Florida, the process requires the family to follow strict procedural rules to make it work.

Show proof that the will was not intentionally destroyed

If the will cannot be found, the first thing to do is prove that the will was not intentionally revoked or destroyed by the testator. The surviving family members will need to overcome the presumption that the decedent revoked or destroyed the will prior to his or her death.

It can be proven that the will exists and was not revoked, tossed, or destroyed by the decedent before their death by demonstrating evidence that:

• The testator was not capable of revoking the will;
• The will got lost or was destroyed without the testator’s approval; or
• The will was unintentionally thrown out or destroyed.

Find a copy of the lost will

If the will cannot be found, it is essential to find a correct copy of the original document. Under Florida Probate Rule 5.510, it is possible to establish and probate a lost or destroyed will with a copy of the original document.

The two witnesses who were present when the will was signed by the testator, as required under Section 732.502, Florida Statutes, will need to testify if the will cannot be found after the testator’s death.

If there is a copy of the lost will, the two witnesses are required to provide sworn testimony and verify in writing that the copy is an actual duplicate of the original will that the testator signed in their presence.

Once the witnesses are able to verify the authenticity of the copy, the copy of the will can be admitted to probate even if the original document cannot be found.

If you cannot find the will written and signed by your loved one, consult with our St. Petersburg estate planning lawyers at Legacy Protection Lawyers, LLP, to determine how you can establish and probate the lost will in your particular situation. Schedule a case review by calling at 727-471-5868.