What if a family member passes and we can’t find the will?

Sometimes a situation might arise where a person who has a will dies and then the will cannot be found. What would happen? What steps should you take to avoid this unfortunate situation? The first important step a person can take to prevent this problem is finding an experienced attorney to help make sure the will is properly executed and properly preserved in a safe location. If you find yourself in this situation, for example, maybe your grandmother in Boca Raton, Florida passes and her will cannot be found, you will also want the assistance of an attorney. If you live in Miami-Dade, Broward or West Palm Beach County there are many options.

If a family member dies and you cannot find their will to admit to probate, the court will presume that your relative intended to destroy the will and that your family member wished for their estate to pass according to intestate laws. If you want to prove that there was indeed a will, you have to will have the burden to produce evidence that a will existed. In some situations this burden may be easier, for example if there is evidence that your grandmother was bed-ridden and incapacitated in Boca Raton Regional Hospital for the last month of her life, and unable to access the will at the time it went missing.

Anybody interested in the estate may establish the terms of a lost will and offer it to probate. In the above example, that may include a brother living in Miami-Dade County, a niece living in Broward County or even an old neighbor living in New York. An attorney can help in this process if they have a “correct copy” of the will. A “correct copy” of the will is not a draft of the will. A “correct copy” of the will could be a photocopy of the document kept in the lawyer’s office. The petition to probate a lost will requires certain legal steps be met. Formal notice must be given; the petition must include a statement of facts stating the grounds for relief and a copy of the will, if it is available. An attorney can help in the process making sure all of the legal requirements are met, ensuring the true wishes of a deceased family member are preserved.

If you or someone you know has an issue regarding a lost or destroyed will or you would like to take steps to prevent issues with the probate of your will please do not hesitate to contact the law offices of Chepenik Trushin. The experienced probate team at Chepenik Trushin is ready, willing and able to assist in all matters of probate administration and litigation. Please feel free to contact us for an initial consultation.

LexisNexis; The Florida Bar, Practice Under Florida Probate Code, Fifth Edition (2007-2008)

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