Losing a loved one is a deeply emotional and challenging experience. Amidst these difficulties can be the challenge of handling the deceased person’s estate. If the individual had a will, it becomes a crucial document for outlining their final wishes and distributing their assets. However, what happens when the original will is nowhere to be found?
The Quest for the Missing Will
The process of locating and submitting a will to probate court can be particularly urgent when funeral or burial instructions, anatomical gifts, or autopsy authorization are mentioned in the will. However, it’s essential to clarify that you cannot demand to see the will of a living person as it’s considered private property. One’s ability to obtain a copy of a deceased person’s will depends on its existence and location.
If the original will cannot be found, a diligent search is required. Family members, close friends, business associates, and anyone who may have knowledge about the will’s whereabouts should be consulted. Wills are sometimes stored in safe deposit boxes in financial institutions. Access to such boxes is regulated by specific laws, and certain conditions must be met, including proof of death and identity.
California Probate Code § 331 allows access to a decedent’s safe deposit box held in their sole name or jointly with others where all holders are deceased. Access is granted to those with a key, under certain conditions.
Rebutting the Presumption of Destruction
When a will is lost, there is a presumption that it was intentionally destroyed. This presumption can be rebutted by introducing evidence that the will was not destroyed. This process may vary slightly between different states, but the objective is to convince the probate court that the will was not revoked.
California Probate Code § 6124 codifies this presumption, but California Evidence Code § 604 makes it clear that the presumption can be challenged with evidence to the contrary.
Proving a Lost or Destroyed Will
California Probate Code § 8223 outlines the process for proving a lost or destroyed will. This involves filing a Petition for Probate (of the lost will), including affidavits from witnesses affirming the copy’s authenticity and an affidavit from the executor affirming the thorough search for the original will.
If these documents are approved, the executor is appointed to administer the estate, and the copy is treated as the Last Will and Testament of the deceased. The estate can then proceed through the probate process, and assets are distributed according to the deceased’s wishes.
Risks and Challenges
While submitting a copy of a will for probate is a more convenient option than proceeding without a will, it comes with its own set of challenges. Finding and getting witnesses to sign affidavits can be difficult, especially if they have moved or passed away. Furthermore, the document submission process can be complex, and any errors can lead to delays.
In summary, it is not impossible to submit a copy of a will for probate as the Last Will and Testament of the deceased. However, it is a more complicated process compared to using the original will. If you are facing this situation, seeking legal assistance may be beneficial in ensuring that your loved one’s final wishes are carried out as intended.
Handling the legal aspects of a loved one’s estate during a time of grief can be overwhelming. It is advisable to consult with an experienced probate attorney to guide you through the process and help you overcome the challenges associated with missing wills. This will ensure that your loved one’s wishes are respected and their legacy is preserved.
Contact Us
Our experienced probate attorney, Thomas S. Wrobel, is here to help you through this process. Feel free to contact our office at (415) 928-4161 or email us at Thomas@TSWrobel.Law.