When an original Will is lost or destroyed...don't panic!

Your father has passed away and after the funeral, you try to locate his Last Will and Testament. You find a photocopy but not the original. You do a quick search on Google and find that in Florida, you need to establish the original Will in order to file a testate probate. Should you panic? In many instances, the answer is "no." In Florida, we have a process where you can "prove up" a lost or destroyed Will.

Section 733.207, Fla. Stat. provides as follows:

Any interested person may establish the full and precise terms of a lost or destroyed Will and offer the Will for probate. The specific content of the Will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

Under the circumstances involving your deceased father, you have two options to establish what his original Will provided. The first involves a situation where you do not have a correct (accurate) copy of the Will. In that instance, if you have two disinterested people who know the contents of the Will, they may testify to the probate court to establish what the lost or destroyed Will said. Under this circumstance, you don't even need to have a copy of the Will if you can prove what the essential contents of the Will. For example, what did the Will say about who are to be the beneficiaries and how much should they receive? Who did the Will designate as Personal Representative to be in charge of the Estate?

The other way to prove up the contents of the lost Will is by using a correct copy and the testimony of one disinterested witness. For your deceased father, if you have an accurate copy of the Will and if a disinterested witness can testify that the copy accurately sets forth the contents of the original Will, you will be able to establish the lost or destroyed Will.

So, who is a "disinterested party'? The law generally says that it is someone who will not benefit by the establishment of the lost Will. If the person is a beneficiary or would otherwise have something to gain by establishing the lost Will, then they likely are not a disinterested witness.

If you lose a loved one and need to file a probate, consult an experienced probate estate attorney who can address how to establish the Will and what steps are necessary to settle the Estate.

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