In our blog posts, we have reviewed the process for formal administration of a Florida probate estate. One of the requirements in a Florida probate administration is that the original copy of the decedent’s (the person who died) will needs to be filed with the clerk of court in the county where the probate is happening. However, what happens when you can’t find the original will? Is the will invalid, or will a copy of the will work?
The establishment of a lost or destroyed will is governed by section 733.207, Florida Statutes and Rule 5.510 of the Florida Probate Rules. Under section 733.207, Florida Statutes, “Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.” Under Florida Probate Rule 5.510, the petition for administration needs to include “a statement of the facts constituting the grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will.”
Section 733.207, Florida Statutes and Rule 5.510 state that if you cannot find the original will, it is pretty easy to prove that the copy of the will is accurate. You will just need to file the copy of the will with the court and find one of the witnesses that saw the decedent sign the will. Once you find the witness, get him or her to sign an affidavit stating that the copy of the will is an accurate copy of the original, and you will be able to prove the will.
If you cannot find the will at all, including any copies of the will, then you will have considerably more difficulty proving the will and admitting it to probate. If there is no will, you will need to find both witnesses to the will when it was signed by the decedent. This is difficult by itself, but it is even more difficult because you do not know who the witnesses are without the will! Further complicating the situation, you will need to provide a statement of the “precise terms” of the will. It will be difficult to provide a precise statement of terms when, once again, you do not have a copy of the will. If you cannot find the original or any copies of a will, it will be very difficult to have the contents of the will admitted into probate in Florida.
Further difficulty arises because of the presumption under Florida law that a lost or destroyed will was revoked by the decedent while the decedent was still alive. This presumption applies whether or not a copy of the will exists. This means that the person who wrote the will decided he or she did not want the will to be carried out after his or her death. Under the law, the court is basically assuming that the reason you cannot find the will is that the decedent had the will destroyed. He or she may have written a new will or may not have any valid will.
Under Florida law the presumption of revocation can only be rebutted in four ways, “(1) evidence that a person with an adverse interest, and the opportunity, may have destroyed the will; (2) evidence that the will was accidentally destroyed; (3) evidence that the original will had been seen among the decedent’s papers after her death; and (4) evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the will.” Balboni v. LaRoque, 991 So. 2d 993, 995 (Fla. 4th DCA 2008). The law covering the many, many instances where Florida courts have considered whether or not the presumption of revocation by the decedent was rebutted is too long to be included here. Look for it in future blog posts. Contents of a lost or destroyed will is only admitted into probate in Florida if the probate court makes a finding that the presumption has been overcome.
If you are a family member or know that you were named as a personal representative in a will, you need to locate the original copy of the will as soon as possible after your loved one passes away. Production of the original will is the only way to avoid the headaches associated with trying to prove a lost or destroyed will.
If you are doing estate planning, you should consider leaving the original copy of the will with the law firm that drafted the will, if this service is offered. Consider keeping several copies of the will in obvious locations where you would keep important papers. The most practical advice is to tell your trusted loved ones where the original copy of the will is located. These are the best ways to avoid the troubles associated with proving a lost or destroyed will.
If you have any questions about estate planning or need to start probate for a loved one’s estate, contact us today. Patrick and I will offer a free consultation about estate planning and can advise you whether you have all the recommended estate planning documents or if there are any changes that might be beneficial. If you need to start probate for a loved one’s estate, Patrick and I will also have a free consultation with you to go over the probate process, so you can know what to expect. If there are any issues, such as a lost or destroyed will, we will discuss them with you and hopefully be able to help you to carry out your loved ones wishes in an efficient and cost effective way.
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