Probating A Lost Will in California

Probating a lost will in California can be a complicated and difficult process. Parties must provide evidence that the testator did not intend to revoke the will. Plus, they must provide proper notice to all interested parties. With these steps in mind, a lost will can make probating an estate a tedious and daunting task. Luckily, A People’s Choice can help! Read on to learn how to probate a lost will in California. Plus, discover how A People’s Choice can make the process easier.

California Laws Regarding Lost or Destroyed Will

California Probate Code 6124 says:

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.

Despite this, in accordance with California Probate Code 8223, a lost or destroyed will can be admitted to probate the decedent’s estate. However, the petitioner must provide evidence to prove that the testator did not intend to revoke or destroy the will. Plus, the petitioner must provide sufficient evidence about the testator’s desires concerning the administration of the estate.

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. 

Normal Probate Proceedings

The testator must prepare and execute their will validly for the court to “prove” and admit it into probate. Specifically, the testator must be over 18 and have the testamentary capacity to draft and execute a will to ensure validity.

There are three types of wills:

• Attested wills are self-proving so long as a witness signs them under the penalty of perjury.
• Holographic wills can enter probate if at least one witness can prove the testator’s handwriting.
• Statutory wills are also self-proving so long as they are signed in the presence of two witnesses.

Under California law, once a person passes away, any interested person may begin proceedings for the administration of the estate. This individual should petition the court for probate even if the will is lost, destroyed, or beyond the jurisdiction of the state.

How to Prove a Will is Lost

If the original will is lost or destroyed, the petition for probate shall include a declaration of the circumstances. Additionally, the petitioner must also attach a copy of the provisions of the will.

Furthermore, when probating a lost will in California, the moving party will need to prove that the will was not revoked. The drafting attorney and any witnesses to the will’s execution can provide testimony about its validity.

However, when a California will is simply lost, the property will most likely pass to the heirs under California’s laws of intestate succession. In other words, the court will distribute the decedent’s property equally to the decedent’s natural heirs or lineal descendants.

Probating a Lost Will in California – Filing the Petition

An executor must use the Judicial Council Form DE-111 Petition to Probate and supporting documentation when filing a request for order to probate a lost will. The petition must contain detailed information setting forth the terms of the lost will and/or codicil. Additionally, the petitioning party must provide documentation to prove that the lost will has not been revoked. They will also need to offer clear and convincing evidence of the authenticity of the contents of the lost will.

The petitioning party must submit a copy of the will with the petition. In addition, they must send a copy of the petition and the attachment to each person entitled to notice. Such individuals include the decedent’s heirs and beneficiaries. Finally, the moving party must attach an order for probate that will be completed after the hearing of the petition.  

A People’s Choice Can Help

If your loved one’s will was lost or destroyed, A People’s Choice can help you file the necessary paperwork for probate. Using our non-attorney California probate document preparation services will save the estate thousands of dollars compared to using an attorney. To find out how much you will save by using our services, try our online probate calculator or contact us for more information.