• Probating A Lost Will in California

Probating A Lost Will in California

Probating a lost will in California can be a complicated and difficult process. From providing evidence that the testator did not intend to revoke his/her will, to making sure proper notice is provided to all interested parties, probating a lost will can make the process of probating an estate a tedious and daunting task. Learn about how to probate a lost will in California and how A People’s Choice can help you.

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. The petitioner must provide enough evidence to overcome a rebuttable presumption that the testator intended to revoke or destroy his/her will. The petitioner must provide sufficient evidence about the testator’s desires concerning the administration of his/her 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. 

How to Prove a Will is Lost

There are three types of wills: Attested Wills, Holographic Wills, and Statutory Wills. A will is “proved” and will be admitted into probate if it is prepared and validly executed under the laws of California. The testator must be an adult (18-years old or older) and have the testamentary capacity to draft and execute a will for it to be valid.

Attested wills are self-proving so long as it is signed by a witness under the penalty of perjury. A holographic will can be admitted into probate if the testator’s handwriting can be proved by the testimony of at least one witness. A statutory will is also self-proving so long as it is 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 of the decedent by a petition to the court for probate of the decedent’s will even if it is lost, destroyed, or beyond the jurisdiction of the state. If the original of the instrument being offered for probate has been lost or destroyed, the petition for probate shall include a declaration about the circumstances of the inability to file the original instrument. If a lost or destroyed will is admitted to probate, a copy of the provisions of the will must be attached to the order for probate.

When probating a lost will in California, the moving party will need to prove, to the court’s satisfaction, that the will was not revoked. The drafting attorney can be contacted as well as any witnesses to the will’s execution in order to provide testimony about the validity of the will.

What happens if there is no copy and the California will is simply lost? In this situation, the property will most likely pass to the heirs under California’s laws of intestate succession, meaning the decedent’s property will be distributed equally to whomever are the decedent’s natural heirs or lineal descendants.

Probating a Lost Will in California – Filing the Petition

The Judicial Council form DE-111 Petition to Probate  and supporting documentation must be used 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. The petitioning party will need to provide documentation and supporting evidence to prove to the court that the lost will has not been revoked. They will also need to offer clear, cogent, and convincing evidence of the authenticity of the contents of the lost will. A copy of the will must be submitted with the petition. In addition, a copy of the petition and the attachment must be sent to each person entitled to notice such as the decedent’s heirs and beneficiaries. In addition, the moving party must attach an “Order for Probate that will be completed resulting from the hearing of the petition.  

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

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By |2018-01-18T15:47:14+00:00November 10th, 2015|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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