Florida Probate – What Happens When the Original Will is Lost or Cannot Be Located

Posted By on November 19, 2009

If a Testator was last seen in possession of his Will and, after his death, the Will cannot be found, Florida law presumes that the Testator destroyed it during his lifetime and thus “revoked” it. A proponent of the Florida Will, likely a beneficiary, may rebut this presumption by establishing that the Will was destroyed or lost without the Testator’s consent, i.e. by someone other than the Testator, or when he lacked the legal capacity to revoke it. The Probate court will consider all potentially relevant factors in determining whether the proponent of the Will has carried his burden, such as if persons who had been disinherited in the Will had access to where the missing Will was presumably located, etc.

If the Florida probate court finds in favor of the proponent of the Will, the proponent must then present two disinterested witnesses to attest to the contents of the Will. A carbon copy of the Will counts only as ONE witness, and a partial copy of the Will is likely useless. If the proponent satisfies this burden as well, he must, further, formally notify and, likely, fight legal claims brought by persons who would have taken the Testator’s estate as intestate heirs if the Will not been admitted to probate.

What’s my point? Only engage an experienced Florida estate-planning attorney to prepare your Will, and make sure that you place your original Florida Will in a safe place, including in your safety deposit bank.  You should retain a copy in your home, with your attorney, and possibly with your designated personal representative, so that your last wishes are honored even if the Will is inadvertently lost or destroyed.

If you would like more information about this topic, you may either post a comment to this blog, contact me, Larry Tolchinsky, by email, or call me at (954) 458-8655 and I will be happy to answer your questions. I offer a free initial consultation.

Comments

One Response to “Florida Probate – What Happens When the Original Will is Lost or Cannot Be Located”

  1. linda blair says:

    At first we were told there was a will and we could look at it. We have not seen or heard of the will since. Our son died and we now are caring for his 14 year old daughter. It looks like she will not be entitled to anything from his estate. This girl is not the daughter of my son’s widow. The widow is entitled to free legal services through her job while we are on social security and cannot afford a probate lawyer to investigate the estate. I know that my son would never have left his daughter penniless. Do we have any recourse in this situation?

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