What Happens if the Original Will Cannot Be Found in Florida?

If you have been named as the personal representative of a loved one’s estate, you may wonder what you should do if the original will cannot be located. When the original will was in the testator’s possession, the court presumes that the testator intentionally destroyed or revoked its contents. Simply having a photocopy does not get you around this legal hurdle, but if you can verify the exact contents of the original will and find an unbiased witness to testify to its authenticity, you may be able to probate a copy of the will.

At Brian K. McMahon, P.A., our South Florida probate lawyer is dedicated to helping families navigate the probate process. If you have a probate matter that you would like to discuss, feel free to contact our office.

Probating a Copy of a Last Will & Testament

Fla. Stat. §733.207 permits a lost or destroyed will to be probated if two disinterested witnesses can establish the full and precise terms of the will’s contents. A disinterested witness is someone that does not have a personal interest in the distribution of estate assets. However, if a correct copy of the will is provided, only one disinterested witness is needed to establish that it accurately reflects the original. A ‘correct’ copy is a duplicate of the original will that was signed by the decedent.

What if No Copy of the Will Can Be Found?

To probate a lost will, two unbiased witnesses must be able to establish the contents of the original will. If no will can be located but the original document was in the testator’s possession at their time of death, Florida law presumes that the testator (decedent) destroyed it with the intention of revoking its contents.

The presumption of revocation only applies when the will was in the testator’s possession, not if their attorney had the original will and the testator retained a copy. However, in cases where the testator did have the will in their possession, whoever is attempting to admit the copy of the will into probate (i.e., petitioner) must prove that the original will wasn’t intentionally destroyed. This must be shown through competent, substantial evidence, which our legal team will assist in gathering.

Balboni v. LaRocque

In Balboni v. LaRocque, the Fourth District Court of Appeal for Florida established the four main ways to disprove the presumption of revocation, which includes presenting the following:

• Evidence that someone with an adverse interest and the opportunity may have destroyed the will
• Evidence that the will was accidentally lost or destroyed
• Evidence that the original will was seen among the decedent’s papers after death
• Evidence that the decedent lacked testamentary capacity (e.g., was incompetent) at a time that would explain the loss, undermining the idea that a competent revocation occurred

What Happens if You Cannot Disprove that the Will Was Intentionally Destroyed?

Even if the presumption is disproven, the petitioner still has to prove what the will actually said. Generally, this requires having two unbiased witnesses testify at an evidentiary hearing. Still, when no copy of the will can be located, it can be challenging to prove the contents of the original will. In cases where the presumption of revocation cannot be refuted, the laws of intestate succession will apply. This is the same process as if there was no will, distributing estate assets based on the decedent’s heirs at law. These heirs follow a specific order, which are outlined in Chapter 732, Part I of the Florida Probate Code.

Death of a Loved One? Contact Our South Florida Probate Attorney Today

At Brian K. McMahon, P.A., we know that honoring your loved one’s wishes means the world to you. If no copy or the original will cannot be found, you do have options. You will be required to present solid proof of the will’s contents while showing that the testator did not intentionally destroy it. This can be a tedious process, but doable with our experienced representation by your side. To arrange your free consultation with our South Florida probate lawyer, contact us online or by calling (561) 658-1789 today.