What to do when you need to Probate a Lost Will?
Have you ever lost something? What if you lost a will and no matter how hard you looked, you could not find it? Many clients worry that if they cannot find the original will, then they are simply out of luck. Fortunately, this situation is not as rare as you might think, and North Carolina has procedures in place so that a person may probate a will, even if it has been lost. (Sometimes wills get “lost” by a person who didn’t like what they would receive in that lost will.)
To probate a lost will under North Carolina law, a person must file a petition with the clerk of court in the county where the estate will be located. Because the court cannot examine the original will, the attorney for a person attempting to probate a lost will has to prove five elements:
- That the testator (the person who wrote the will) is dead;
- That the original will cannot be found ;
- That the original will was properly executed;
- The contents of the original will; and
- The original will has been lost or had been destroyed by someone other than the testator or someone acting at his direction.
Courts strongly prefer to probate the original will, not copies. When a will cannot be found, courts presume that the testator destroyed the will and meant to revoke it. If a will has been revoked, then it has no effect. A person attempting to probate a lost will must show that the testator did not intend to revoke the will and that he will is still valid.
Courts may look to several different sources of evidence to determine whether to probate a lost will. First, courts will look to the witnesses who signed the original will. These witnesses are especially important in proving that the original will was properly executed under statute.
However, if the witnesses cannot remember the signing of the will, cannot be located, or have since died, then courts can look to other evidence. Other people who witnessed the will signing may be called to testify about the original will. In many cases, a will may be “self-proving” and would not need the witnesses to appear in court to testify. The court could look to the document itself to see that it was properly executed.
Though the five elements are the same, the facts surrounding lost wills can change drastically from case to case. Because of the wide variety of circumstances that can accompany lost wills, it is important to have experienced attorneys to guide you through the process.
Estate LitigationAttorneys W. Kirk Sanders and Benjamin C. McManus at Hendrick Bryant have experience in probating lost wills and other estate litigation issues. Give the North Carolina estate litigation attorneys at Hendrick Bryant a call today at
(336) 723-7200 to set up an appointment to discuss your matter.
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