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What Happens When You Can’t Find the Original Will?

By September 8, 2017August 6th, 2019Estate Planning

So you are dealing with the death of a family member and you begin a search through their effects for a Last Will and Testament. You know they have one and vaguely remember them mentioning where they put it. But that conversation was several years ago and your memory is hazy. Or the Will is simply not in the place in which they said it would be. You slowly begin to realize that you have a problem. You can’t actually find your loved one’s Will, or can only find a copy of the Will. Your natural question is “what do I do now?”

Courts always prefer the original documents. This certainly applies to personal Wills. Oftentimes, upon someone’s death, you will provide the Court with the actual executed Will of the decedent for processing and interpretation. Here in Michigan, sometime the deceased has filed the actual Will with the Court for safe keeping. This filing typically occurs in the probate court, in the County in which the decedent resided. So if you have been unable to find the original Will of a loved one, and you don’t have any other leads, you may want to expand your search to the local probate court’s vault.

What if all you have is a copy of the Will?

When attempting to admit a copy of a ‘lost will’, a presumption exists that the original was intentionally destroyed or revoked. In order to overcome this presumption, a few things must be shown. You must provide sufficient proof to the Court that:

  1. An original will was actually executed,
  2. Contents of the original are substantially the same as the copy, and
  3. Testator had not revoked or destroyed the original prior to death.

When a copy can’t be found, one common problem that many run in to is attempting to explain to the Court what a decedent said they wanted prior to death. The decedent’s oral bequests, and statements of intention to draft a Will are insufficient to establish validity of the copy or any estate plan. Just because the Testator may have said they wanted you to have a house, car, diamond ring, or boat, it is typically not enough to establish testamentary intent. If the bequest was not put in writing by the testator, or if it was put in writing, but the writing is lost and cannot be found, the Court will oftentimes default back to the intestate rules of succession. But if copy of the Will does exist, and you can provide adequate proof to overcome the presumptions of revocation, the Court may allow a copy of the Will to be admitted in place of the original.

What happens if I find the original Will later after admitting a copy?

Should the original turn up at a later time, you will want to admit the original version of the Will in order to avoid any questions or ambiguity between documents. Again, the probate court always prefers that the original version of a Last Will and Testament to admitted. It can also help protect the Personal Representative from liability in administering the Estate pursuant to the original Will of the Testator.

If you need assistance getting a copy of a Will admitted to probate court here in Michigan, we may be able to help. Call Hewson & Van Hellemont, PLC, to discuss your options at 248-968-5200.

Bruce Rice

Bruce Rice a graduate of Wayne State University Law School practices Family Law, Estate Planning and Probate Litigation and Administration. View Profile

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