Throughout my career, I have dealt with clients who have come to me with a copy of their loved one’s will. They cannot find the original. Does that mean the will cannot be probated? Not necessarily. But sometimes this can be easy to accomplish and sometimes, complicated.

Under Florida law, if one only has a copy of a last will and testament, the presumption is that the deceased destroyed the original will. However, the person wishing to probate the copy of the last will and testament can overcome the presumption. To admit a copy of a last will and testament to probate requires additional probate steps not required when one has the original last will and testament.

Firstly, a petition is prepared and filed with the court, which includes a statement of facts, which constitute the grounds upon which the copy the last will and testament should be admitted to probate. A copy of the last will and testament is attached to the petition.

Secondly, the witnesses who signed the will must provide, in writing, the following testimony.

1.       The photographic copy is a true copy of the original will and testament; and

2.       The deceased signed the original of the writing at the end in the presence of the attesting witnesses or acknowledged in the presence of the attesting witnesses that the decedent had previously signed the last will and at the end; and

3.       The witnesses, in the presence of the decedent and in the presence of each other, subscribed their names to the original of the writing as attesting witnesses.

The death of or inability to find the witnesses to the will complicate matters.

Thirdly, the petition, the written testimony of the witnesses, and a copy of the last will must be provided to the natural heirs of the deceased who would otherwise be entitled to the property of the deceased, but for the copy of the will. Any heir receiving these documents has the right to object to the admission of the copy of the will to probate, which would require a court hearing to determine the admissibility of the will to probate. This will certainly complicate matters.

The biggest complication, however, is the unavailability of either the original or copy of the last will and testament. As with the copy however, this does not preclude the admission of a lost or destroyed will and testament to probate. If you have any questions about a lost or destroyed last will and testament, feel free to book an appointment with us so we can assess your situation and provide proper counsel.