California probate lawyers and estate litigators know that documents are easily lost. Even the National Archives has an extensive list of "Missing Historical Documents and Items." Is it any wonder that we as ordinary people also lose documents? When it comes to Wills and Trusts, lost documents can shatter the expectation of a family's estate planning. The shared principles of a family's wealth transfer existing before the death of a family matriarch or patriarch are sometimes challenged by the crafty finagling of an outside bad actor (or family member).
Many times I have heard suspicions that a family member destroyed a Will in order to enhance his or her inheritance. We find remedies to deal with such wrongdoing, but generally the legal solutions are neither immediate nor inexpensive. Sometimes the simple embarrassment or humiliation endemic to exposed wrongdoing will prompt the "rediscovery" of a Will or Trust initially said to be "lost."
Families in grief - or in expectation of an inheritance - can be unpredictable. At times a lone member of the family can act as the one-man wrecking crew of family unity. That said, and without identifying all the ways that we use to "smoke out" a lost Will or Trust, there are procedures in the California Superior Court for the probate of a lost Will.
Early questions arise as to the absence of a Will, among them:
- What can we do if the Will has been lost for years?
- Do we need to have witnesses that know the contents of the Will?
- What else do we need to know to get a lost Will admitted to probate?
- May a draft of a Will be an acceptable substitute?
Let's start with the law. California Probate Code §6124 (link) provides:
"If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence."
Assuming no copy of the Will and no evidence to overcome the presumption, the decedent's assets (except those excluded from probate) will probably pass intestate, meaning that the estate is subject to California's statutory scheme for intestate transfers.
Sometimes there is evidence that the Will was not destroyed. For example, the decedent may have shared a copy of the Will and asked his relative to keep it in a safe place. Such a copy, again depending on the evidence, may be valid and admitted to probate.
The petition for probate of a lost or destroyed Will must "include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate." California Probate Code §8223.
There are a number of laws and procedures that apply in going to prove a lost Will. In any event, experienced probate litigators can help - call Hackard Law today at 916-313-3030.