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A Lost or Destroyed Will Can Be Submitted To Probate…Under Certain Circumstances
We strongly suggest that our clients protect all of their original estate planning documents by keeping them in a fireproof container. This includes their Last Will and testament. However, what happens if a will is somehow lost or destroyed?
A lost, spoiled or destroyed will can be admitted to probate under certain circumstances. The question becomes did the testator intentionally destroy the will, which makes it null and void or was it unintentionally lost or destroyed which makes it still valid. The law in Ohio used to be that if a will could not be found, the assumption was that it was intentionally destroyed as a way of revoking it. This assumption no longer exists.
Keep your Original Estate Planning Documents in a Safe Place
Upon applying to admit a lost or destroyed will, the court will set the matter for a hearing. Certain individuals must be notified of the hearing, Those include any surviving spouse, anyone named as a beneficiary under the will, anyone who would be a beneficiary if the decedent had died without a will and anyone who would have been a beneficiary under decedent’s most recent will.
At the hearing, the applicant must prove by clear and convincing evidence that the will was executed with the formalities required by law at the time it was executed and must prove what was included in the will and also no one who would oppose the will can prove that the decedent had revoked the will. This usually requires the cooperation of the attorney who prepared the will and the witnesses to the will to prove these facts in court.
Upon proof of the contents of the will and that it was executed with the proper formalities and absence proof that it was intentionally destroyed, the court can admit the copy. While this is an available last choice option, this process is not simple, certain or inexpensive. It is a reminder that you should always keep your estate planning documents in a safe place so that a situation such as this is not necessary.
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Joseph Balmer manages the Probate, Trust and Estate Administration department at Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has been certified by the Ohio State Bar Association as a specialist in Estate Planning, Trust and Probate Law since 2006.
