What If the Original Will Cannot Be Found?

We increasingly live in a world of e-signatures, digital contracts, and records stored in the cloud. Buying a home, opening a brokerage account, or signing a lease can all be done electronically. This shift has been so seamless and convenient that many people naturally assume the same rules apply to legal documents. While that may be true in some cases, it does not apply to a Last Will and Testament.

A Will is one of the last paper-dependent legal documents. You can scan it, email it, and save a copy to the cloud, but when the time comes to open an estate in probate court, only the original document, signed by the testator and two witnesses, will do.

The Probate Court Only Accepts Original Documents

When it comes time to probate a Will, the court will only accept the signed original, signed by two witnesses. If you try to submit a copy, the court will likely reject the Will and proceed as if no Will ever existed.

In Cases of a Lost Will, Courts Expect an Exhaustive Search

When a loved one passes away, one of the most important items you will need to address is locating the original Will. If the original Will cannot be located, the court expects that you will have conducted an exhaustive search. Check with close relatives, in safe deposit boxes, and with the attorney who prepared your loved one’s estate planning documents. Wills have also been found in at-home lock boxes, filing cabinets, desk drawers, or with the executor named in the Will.

How to Admit a Spoliated Will

In certain circumstances, Ohio probate courts will accept a lost, damaged, or misplaced Will. Known as a “spoliated Will,” the court will hold a hearing to determine whether the evidence is sufficient to admit a copy of the original Will.

Before the hearing, the party seeking to introduce the lost Will must notify all interested parties. This includes interested parties named in the spoliated Will as well as anyone who was named in prior versions of the Will and anyone who would inherit under Ohio intestacy laws. The goal of providing notice is to allow all parties to challenge the Will if they choose to do so.

Under R.C. §2107.26, “the probate court shall admit the lost, spoliated, or destroyed will to probate if both of the following apply:

(A) The proponent of the will establishes by clear and convincing evidence both of the following:

(1) The will was executed with the formalities required at the time of execution by the jurisdiction in which it was executed.

(2) The contents of the will.

(B) No person opposing the admission of the will to probate establishes by a preponderance of the evidence that the testator had revoked the will.”

During the hearing to determine whether a photocopy of the lost Will should be admitted, the individuals wishing to submit the lost Will must prove these factors by “clear and convincing” evidence. This standard is greater than a preponderance but less than the “beyond a reasonable doubt” standard that applies in criminal cases. If the individuals submitting the copy of the Will fail to meet the standard, the Will will not be admitted and the estate will proceed as if the individual died without a Will, or “intestate.”

What To Do If a Will Is Lost After Death

If you discover that a loved one’s Will is missing, gather any available copies or notes that reflect your loved one’s wishes. Then, consult an experienced probate attorney.

A probate attorney can help you and your family navigate the notice and evidentiary requirements of proving a spoliated Will, ensure the probate process is handled properly, and protect the interests of all parties involved. Contacting an attorney early can reduce confusion, prevent delay, and help move the estate forward efficiently.

How a Probate Attorney at Gudorf Law Group, LLC, Can Help

If you recently lost a loved one and cannot locate their Will, the Ohio probate attorneys at Gudorf Law Group, LLC, can help. We can support your family in the search for the lost Will, help you navigate the probate process, and handle the notice and evidentiary requirements of admitting a spoliated Will.

Contact Gudorf Law Group Today

Gudorf Law Group is located in Dayton and serves clients throughout Ohio. Contact us today to schedule a consultation to discuss your situation and how we can assist you.