When a loved one passes away, one of the most important things you can do is ensure that his or her estate is handled properly. This process is much easier if your loved one created a will during his or her lifetime that may be submitted to probate court to demonstrate testamentary wishes of the decedent, the person who passed away.
In submitting a will to probate court, you typically will need to file an original copy of the decedent’s will to the clerk of court of the county in which the decedent lived when he or she passed away. This becomes an issue when the decedent’s original will cannot be located, but copies of the will are present. The difference between an original will and a copy is small, but very important in submitting it for probate. Both documents contain the exact same information and signatures, but the original will is the document that the decedent actually signed when the will was created and the will copy is an extra version. Most of the time, the testator, the person who is creating the will, keeps the original will and gives the copy of the will to a loved one for safekeeping. That is why it is not uncommon for the original will to be missing at the time of the testator’s death.
Process of Submitting a Will Copy to Probate:
First, the executor, or person assigned by the testator to submit the will to probate, will need to file a Petition for Probate of the Lost Will. Included in this Petition will be an affidavit that the witnesses to the original will sign affirming that the copy of the will is in fact a true copy of the will that they witnessed the testator sign. Also included in the Petition will be an affidavit from the executor affirming that (1) a thorough search of the decedent’s contents has been done to locate the original Last Will and Testament; (2) there was verbal knowledge between the decedent and the executor regarding the decedent’s wishes and the placement of the original Last Will and Testament; and (3) the executor affirms that the terms of the Petition are true and accurate.
After all of this information is submitted and approved by the clerk of court, the executor will be appointed to administer the estate and the will copy will be treated as the Last Will and Testament of the decedent. The estate will then move forward in probate and the decedent’s assets may be distributed according to his or her testamentary wishes.
Risks in Submitting a Will Copy to Probate:
Although this process is much more convenient than going through probate without the decedent’s will at all, it does come with difficulties. For example, there may be a problem in finding the witnesses to the original will to submit the signed affidavit. Depending on how old the will is, the witnesses may have passed away or moved and may be difficult to locate. Even after the witnesses are found, they must agree to sign the affidavit. The process of finding the witnesses and getting them to agree to sign the affidavit, if possible at all, may greatly prolong the process of submitting the will copy to probate. If any of the witnesses have passed away or are unavailable, the executor will need to provide evidence as to why they cannot sign the affidavit.
Other problems may arise in filling out the documents that must be submitted along with the will copy. If the executor does not have an attorney helping with the process of submitting the will copy, it may be confusing to fill out and submit all of the documents properly. If there is any issue in the documents, the Petition for Probate of the Lost Will will be denied and the executor will have to start the process again.
In sum, it is not impossible for a copy of a will to be submitted to probate as a person’s Last Will and Testament, but it is much more difficult than submitting an original will. If you or someone you know has a loved one that has passed away and the original copy of the will cannot be found, contact us today so that we may assist you in ensuring that your loved one’s testamentary wishes are carried out.