In short, a last will and testament is a legal estate planning document that allows an individual to designate how their estate will be distributed upon their death. A person’s estate consists of their real and personal property, including any houses, vehicles, jewelry, or other property that they may wish to be distributed upon death. However, in order for a person to have a say in the exact way in which their property is to be distributed upon their death, they must execute a valid will.
It is important to note that the exact laws for creating a valid will differ by state and jurisdiction. In general, in order for a will to be considered valid in most states, the will must meet each of the following requirements:
- The will must have been made in writing;
- The will must have been signed by the “testator” (i.e., the person seeking to create the will);
- Although not generally a hard requirement, the will should also always be dated. Doing so can help to reduce any confusion that may arise regarding wills that may be executed at a later date;
- The testator must sign the will;
- If the testator cannot properly sign the will, such as if they cannot use their hands, then most state laws typically allow that person to make a defining mark, such as an X;
- The will must be witnessed by at least two or more competent witnesses who do not have an interest in the estate; and
- The testator must possess proper testamentary capacity.
A person is generally considered to possess testamentary capacity if they are above the age of majority in their state (generally 18 years of age or older), if they are in the military, or if they are legally married, and know that:
- They are creating a will;
- The effect of the will is to distribute their estate property upon their death;
- They understand the specific property in which they are distributing; and
- They understand who is receiving the property being distributed.
Once again, the requirements for creating a valid will vary depending on the state where the testator resides. As such, it is important to consult the local estate laws of the jurisdiction in which the testator resides in order to ensure that any will being drafted complies with the laws of that jurisdiction.
Where Can Lost Wills Be Found?
If a will has been lost, there are often many places to locate the lost will in order to prevent the courts from assuming that the testator died intestate. In short, intestate simply means that a person died without a will.
If a person’s lost will cannot be located, then they will be considered to have died intestate, and intestate laws will determine how their estate is divided. This means that the hierarchy of distribution of estate assets will be determined by the local estate laws rather than the division scheme that may have been present in the lost will.
Once again, finding a lost will is not often an impossible task. For example, oftentimes, the executor of the will or a family member may already possess an executed copy of the will that was created for them to possess. Further, witnesses to the will may also possess a copy of the will if the witnesses were close friends of the testator.
One of the main ways in which lost wills are often found is by contacting the attorney who assisted the testator in drafting their will. Most attorneys will keep a copy of the wills that they created in a safe storage place for instances in which their clients may lose a copy of the will and need another copy. Other places where a lost will may be located include a personal safe at a storage unit or in a safety deposit box.
Once again, if a lost will cannot be located, local courts will assume that the person died intestate or that the testator destroyed the will. As such, it is important to keep any executed wills in a safe location. It is also crucial to ensure those who are affected by the will are aware of the location of the original executed document.
Will a Copy of the Will Be Accepted?
In short, it depends. Whether or not a local probate court may accept a copy of a will depends on the specific laws that govern copies of wills for that jurisdiction. There are numerous jurisdictions that allow for a copy of an executed will to be accepted. For instance, the copy of the will may come from the attorney who made a photocopy of the original executed when they assisted the testator in drafting it. Because of that, it is likely to be accepted by the probate court.
Further, any copy of the will that contains an original hard signature of the testator will typically have the same legal effect as an original document. Other probate or estate courts may allow a witness who witnessed and signed the original will document to attest that a copy of the will is valid. Once again, state or local laws will control whether or not a copy of a will may be utilized in probate court.
Is There Anything I Can Do to Prove the Will Wasn’t Destroyed?
The simplest answer to whether there is anything that can be done to prove the will wasn’t destroyed is to produce the will. However, that is not always an option. In some situations, it may be possible to present evidence to the court that the will was not destroyed. An individual who seeks to make such a claim must typically:
- Provide evidence that the testator didn’t revoke or intend to destroy their will, such as by providing communications between the testator and persons named in the will;
- Prove the contents of the original will, such as by providing a photocopy of the will; or
- Prove that the will can’t be found after a thorough search but that there is reason to know how the testator intended to distribute their assets.
As can be seen, a lost will can have major effects on the distribution of a deceased person’s estate. Without a valid will being admitted into court, the deceased person’s estate will likely have to be distributed according to state intestacy laws. Importantly, state intestacy laws typically don’t provide specific instructions regarding family heirlooms or pieces of personal property that may hold sentimental value.
Instead, state intestacy laws often create a hierarchy of distribution. This process is where close family members, such as spouses or biological children, typically receive the first shares of a person’s estate, with other family members receiving the remainder, if any. As such, some family members may be more interested in finding a lost will than others.
Do I Need to Contact an Attorney About a Lost Will?
As noted above, the first attorney that should be contacted about a lost will is the attorney who helped the deceased individual create their original will. However, that lawyer may be unable to resolve the issue of a lost will, and the lost will might be affecting your interests in the estate. If this is the case, it is in your best interests to consult with an experienced will lawyer.
An experienced will lawyer will be able to assist you in locating the lost will. Further, if the lost will is unable to be located, then the will lawyer will be able to represent your interests in the distribution of the deceased individual’s estate. Finally, an attorney will also be able to represent your interests in court, as necessary.
