Do I Need the Original Will?
By: Barry E. Haimo, Esq.
May 18, 2
BARRY HAIMO: In probate proceedings, you do in fact need the original will. However, if you have a copy and the original will cannot be found, that can be used under most circumstances.
Whether or not a probate court proceeding is necessary for the terms of a will to be deemed valid, the court needs the original version of the will after the will-maker passes away. After all, the best evidence is always the original document.
The person in possession of the original version of the will must file it promptly with the courts. It is advisable to make your own copies of the will, as the probate court will keep the original.
It will be very difficult to prove in court the validity of copy of a will, which is why it is important to have the original version of the will. Probate courts want the original document and will not accept a copy if the location of the original is known.
You should try very hard to find the original will, as the process of proving a copy is legitimate can be costly and time-consuming. The decedent’s attorney may be in possession of the original will, or he or she may be aware of where the original copy is located. You might also check to see if the deceased person had a safe deposit box. If this is the case, you may need to get a court order in probate court to access it.
If the will is missing because the will-maker revoked it, Florida’s intestate laws will determine who inherits from the estate and all other fiduciary appointments as well
If You Cannot Locate the Original Will
As mentioned above, if you can only find a copy of the will, and not the signed original version, you may be able to argue before the court that the copied document should be accepted.
You will likely need to provide a good explanation for why the original document cannot be found, in addition to evidence that the deceased individual did not at any point change his or her mind about the contents of the will.
You might suspect that someone has the original will in their possession, but is refusing to produce it for one reason or another. In this situation, before you talk to anyone, you should consult with a lawyer about the next best step. You and your attorney may be able to get the probate court to enter an order compelling that person to deposit the will to the court or face contempt charges.
If There Is No Valid Will
You may not be able to find any will at all, or you may be only able to find a will that was revoked before the decedent passed away. In this case, you may be able to prove to the court that the will that was in effect at the time of death was lost.
You might even be able to prove what the will said, perhaps through testimony from the deceased person’s attorney or spouse. The court may accept the alleged terms of the will at the time of death in this situation.
In pretty much any situation where the original will cannot be located, or if no copy can be located at all, you will need an experienced estate attorney to help you through the process.
Barry E. Haimo, Esq.
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