What if I can’t find the original will?
In this video attorney Curt Runger details what you do if you cannot find your loved one’s original will. View the video below or see the transcript to hear Curt’s answer to this frustrating question.
My name is Kurt Rucker and I’m an attorney in Memphis, Tennessee, and I help get my clients peace of mind by helping them navigate through the probate process after the death of a loved one. So one situation that comes up from time to time is out, we’ll have somebody come to me and they will say, I can’t find my loved ones original last will and testament. What can we do I have a copy of the original last will and testament but we cannot find the original. And this presents a unique set of circumstances for attorneys in Tennessee, because it is possible to admit a copy of a last will and testament as a last will. But it is difficult to do and I’m going to talk to you about sort of what the process is for that and how important it is to make sure that you actually retain your original last will and testament and that your loved ones know where the original is. So in Tennessee, there is a presumption that if an original will cannot be found, there’s a legal presumption that the testator either revoked it or destroyed it. When we’re presented with a situation where we have a copy that we’re trying to introduce into probate court, we have a some challenges. The first thing that we have to do is to prove that, obviously, the decedent made a last one testament during their lives, that the decision is actually now deceased, obviously, and that the contents of the copy of the last will and testament would otherwise be valid. That can be difficult as well, because the thing about having an original last one Testament is it’s got the original signatures of the witnesses. It’s got the original signature of the Federal Republic. If we’re true To prove that a copy of a will is actually a valid will, but it’s just a last will, then we have to be able to establish that it would have been valid. So what that oftentimes entails is actually cracking down the witnesses to the last one testament or the notary and getting affidavits from those individuals that yes, they do, in fact, recall the execution of the last will and testament that everything was done accordingly. Now, in addition to that, we also have to be able to show that you’ve made a diligent inquiry and search for the last will and testament the original and that you simply can’t find it. And definitely the most difficult thing that is involved and trying to admit a copy of last will and testament as a last will is proving good clear and convincing evidence which is a high legal standard. To prove you have to prove by clear and convincing evidence and satisfying the judge that the deceiving did not actually revoke or destroy the original last will and testament and that can be a very, very tricky thing to do. And you 100% have to have experienced probate counsel to help you through that situation because we all know the ramifications of it can be actually drastic. So if the if you’re unable to admit the copy of the document as a lost will, then the decision to state is actually going to be distributed pursuant to the laws of intestate succession, which means that the property is going to pass to the areas of law, which could actually be very, very counter to what the test data wanted to happen. So for that reason, it’s absolutely critical that if you have a last will and testament that you know exactly where the original is and that your loved ones and most importantly, your personal representative that you nominate in your last one testament knows where that original is.Because it makes our lives a lot easier. It actually makes the process less expensive. It’s so much easier to do with the deal with. So if you have any questions about probate matters, please give me a call.