If your loved one talked in the past about having created a will, you might feel confused when you and your family aren’t able to locate it after their death. Fortunately, California law permits families to fulfill their loved one’s wishes through procedures to probate a missing will. An experienced probate attorney can walk you through handling a missing will in probate.
Determine Whether the Decedent Left a Will
First, you should confirm that the decedent created a will during their life. You can speak with family members, friends, and the decedent’s legal counsel to inquire whether the decedent worked with them to draft a will or talked about having written a will. When multiple witnesses confirm that a decedent created a will during their life, it can strengthen a case for probating a missing will. In addition, you can contact the probate court to inquire if the decedent or any other party has filed a copy of the decedent’s will with the court.
Search for Copies or Drafts
When you suspect the original signed copy of the decedent’s will has gone missing, you can search for photocopies or drafts. California law allows probate of a lost will if a petitioner can provide a written statement of the decedent’s testamentary words; a photocopy of the decedent’s signed will or an unsigned final draft of the will can supply the evidence required to probate a lost will. However, the probate court may require additional supporting witness testimony, such as from the decedent’s attorney who helped draft the will, who can confirm that a copy or draft matches the final version of the will the decedent signed.
You can search for copies or drafts of a decedent’s will in various places, such as the decedent’s home (including any safes in the house), safety deposit boxes (many financial institutions permit access to a decedent’s safety deposit box to search for estate planning documents), or on the decedent’s computer or cloud storage accounts. You can also ask the decedent’s attorney for a copy of the will they prepared for the decedent.
Presumption of Revocation
When a decedent created a will during their life, but their family cannot locate the will after the decedent’s death, the law may impose a rebuttable presumption of revocation of the will through its destruction by the decedent. A person can revoke a will by destroying the original signed copy, intending to revoke the will. However, families can rebut the presumption of revocation of a lost will by presenting evidence of the will’s destruction through non-intentional means, such as a house fire, or testimony indicating that the decedent had not revoked their will (such as referring to their will in conversations in the months, weeks, or days before their death).
Proceeding with Probate without a Will
If you cannot locate a decedent’s will (or a copy or draft) or rebut the presumption of revocation, then the decedent’s estate will go through intestate succession due to the lack of a will. In California, the intestate succession law determines which of a decedent’s surviving family members will inherit from the decedent’s estate and the shares of the estate each heir will receive. The intestate succession law prioritizes a decedent’s surviving spouse and descendants, with other family members inheriting if a decedent did not leave a surviving spouse or descendant.
How a Probate Attorney Can Help
If your loved one’s will has gone missing after their death, a San Jose probate attorney can help you petition to probate a lost will by:
- Conducting searches in places where people traditionally keep important documents
- Reconstructing a lost will through photocopies, drafts, or testimony from legal counsel involved in preparing the will or the decedent’s family members
- Petitioning for probate of a lost will
- Locating the decedent’s assets and identifying heirs and beneficiaries
Contact Our Firm Today to Discuss Your Options
When your family cannot find a deceased loved one’s will, you still have legal options for probating their will and following their wishes. Contact BoyesLegal, APC, today for an initial consultation with a San Jose probate attorney to learn more about probating a missing will.