Having someone you love pass away is one of the most difficult situations we can experience.  After you have had time to take care of the funeral and grieve, one of the next steps is of course making sure the estate is settled appropriately and probate is addressed.  When filing a will with the clerk of court, you are typically required to file the original document for the probate of it.  But what happens if you can only find a copy of the will?

Assuming an attorney has reviewed the estate assets and has determined an estate will need to be opened for the assets to be distributed, there are fortunately statutes in place that allow the probate of a copy of the will.  However extra steps will be necessary for the executor.

The executor, or, petitioner, will need to file a Petition for Probate of the Lost Will. The clerk also requires the witnesses to the will to sign an affidavit affirming that they in fact witnessed the signing of the will, and this also will need to be filed.  Finally, the Petition will include an affidavit from the executor/petitioner verifying the following:

  1. A thorough search of the deceased’s contents has been done to locate the original Last Will and Testament;
  2. There was verbal knowledge between the deceased and the Petitioner regarding the deceased’s wishes and the placement of the original Last Will and Testament; and
  3. The Petitioner affirms that the terms of the Petition are true and accurate.

Once all this information has been submitted and approved by the clerk, the executor will be appointed for the estate and can move forward with the estate matters and distribution of the assets of the deceased.

While this process has been put in place to allow probate of a copy of a will and allow more efficiency and honoring of the deceased’s wishes, it does not come without drawbacks.  Given that the original witnesses to the will have to sign an affidavit, it means those witnesses will need to be located.  Depending on how old the will is, whether witnesses names are legible, whether they have moved or changed their names, and many other factors will determine how easy and attainable this step in the process is.

As you can see this process will take more time and effort on the executor’s part and the attorney’s part, meaning a longer wait until the estate is settled and more accrual of fees in the probate of it.  It is certainly best practice to have your estate planning documents in place prior to your passing, as it will make things a much easier for your executor to distribute the assets of your estate, whether you have substantial assets or not.  It is advised that these documents be stored in a fire-proof safe for safekeeping as opposed to a safe deposit box.

If you need help in either probating a will, a copy of a will, or putting your own estate plan in place, contact us today to set up a consultation with one of our attorneys.