Sometimes, for whatever reason, after someone dies the family can’t find a will. In some cases there may be a copy of a prior will; in some cases it may simply be a belief that the person had a will or someone was told at one point that there was a will.
This is a problem. It is a problem because, under Florida law, even if you have a copy of a will, Florida law presumes that the original will was destroyed with the intent to revoke it. This is governed by Florida Statute 733.207, available here:
Florida Statutes 733.207
While this presumption can be overcome, it is not necessarily easy or cheap. As this case discusses, you need to file a separate proceeding to establish a lost will and to present live testimony; sometimes probate lawyers will try to ‘short circuit’ the process either by use of affidavits or by simply filing a copy of a will and asking the judge to admit the copy as an original. This is a very definite no-no; there needs to be full notice and disclosure to all potentially affected parties. See this case, Estate of Brennan, for an example, available here:
Estate of Brennan
Then, on top of this, you need to convince a judge that the will was destroyed or lost by accident or deliberately by a wrongdoer; it is not as easy as simply saying “We can’t find the will, it must have been misplaced or destroyed by someone”. As this case discusses, you need more than just a theory; you need actual evidence;
No evidence, the lost will is not admitted to probate.
If you can’t find a will, what can you do? Several things; first, look through bank statements and such; see if the person had a safe deposit box. If there was one, Florida has a procedure for going to a judge and getting a court order to open the box solely for the purpose of looking for a will. Second, contact one or more local attorneys; while most attorneys do not keep original wills, some attorneys still do; even if the local attorney you contact does not have a record of a will for that person, the lawyer may be willing either to give you the names of some other local attorneys who draft a lot of wills, or he may be willing to contact other attorneys asking if they know anything about a will for that person. Otherwise, you simply need to keep looking. One case I was involved with, it took nearly a month to find the will; the deceased testator had put the original will in the box with the Christmas ornaments. Why did he do that? I don’t know but that’s where the will was found.
The point is, while it is possible to get a lost will admitted, it is a very rough road. If you have questions regarding what to do if you can’t find a will, contact a Florida attorney, preferably a Probate Lawyer. If you have questions about Probate in The Villages, Florida, please feel free to contact my office.