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Probate an Estate with Lost Will

If you have to probate an estate with lost will in California, it is not an easy task. If a will is lost, specific facts, circumstances, and state law will decide which family members inherit the decedent’s assets. For example, if the will was revoked prior to the decedent’s death, and a new will did not replace it, an earlier will or the laws of intestate succession will determine who receives the decedent’s estate. If a will is missing because it was lost while in the possession of the decedent, a photocopy of the will may be admitted into probate. Read on to learn more about how to probate an estate with a lost will in California and how A People’s Choice can help you.

The Presumption Under California Law

If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence. See Probate Code section 6124.

California Laws Regarding How to Probate an Estate with Lost Will

When considering probating a lost will in California, California law provides that if a will or a duplicate of a will cannot be found, it will be presumed that the testator destroyed the will with the intent to revoke the document.

California Probate Code section 8223 allows a lost or destroyed will to be admitted into probate to rebut the presumption of the testator’s intention to destroy his/her will.

“Probating a lost will is tricky. Fortunately I found A People’s Choice. They were able to help me explain why I could not provide the court with an original will.” T. Garrison
“I knew going in that I had to prove my aunt had not intentionally destroyed her will…that it was simply lost.” Thank goodness she had sent me a copy.” T. Garrison
Fortunately I lucked out. Thcourt decided that my aunt’s lost will was valid and A People’s Choice helped me complete the probate process.” T. Garrison

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“The petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate.”

When attempting to probate an estate with lost will, the petitioner must provide enough evidence regarding the authenticity of the lost or duplicate will. A copy of the provisions of the will must be attached to the petition for probate. If the Petitioner can, in fact, prove that the lost or duplicate will is valid, it will be admitted into probate.  A will is “proved” if validly prepared and executed under California state laws.

How to Prove a Lost or Duplicate Will

Proving the validity of a will depends on the type of will prepared. There are three types of wills: Attested Wills, Holographic Wills, and Statutory Wills. The testator must have been at least 18-years old when he/she prepared his will, held testamentary capacity, and properly signed the will in order for it to be proven valid. 

Attested wills are self-proving so long as it is signed by a witness who was present when the testator signed the document. A holographic will (handwritten will) can be admitted into probate so long as an expert is able to confirm that it is, in fact, the testator’s handwriting. A statutory will is self-proving if it is signed in front of at least two witnesses.

Most importantly, the Petitioner will have to prove that the decedent did not intend to revoke his/her will. Even though the original will may be essentially lost, a duplicate original can sometimes be accepted if the court can be convinced that the testator simply misplaced the original will.

Contact A People’s Choice for more information on how to probate an estate with lost will in California. We can prepare all the legal forms you need to probate a lost will on your behalf.

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By | 2018-01-18T15:46:35+00:00 November 11th, 2016|Probate|0 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

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