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Lost Will Florida — how do you get it probated?

What We Do • Apr 13, 2021
post about Lost Will Florida — how do you get it probated?

What do you do if a Florida will is lost? Well, it’s possible to have that lost will probated. You need to know one statute, one rule and one case. We have previously written about Lost Wills before. Now, let’s re-visit this subject and talk about what steps you need to take. How do you probate a Lost Will Florida?

Lost will florida
Lost Will Florida. There is a procedure to admit a will to probate even if it is lost.

The Rules for Lost Wills

There is a statute on probating a lost will. The entire Florida Probate Code is online and may be read for free. Zero in on Fla. Stat. 733.207. First, you need to have STANDING to probate a lost will. That means that you need some connection to the probate or the will. If you are a beneficiary or a nominated personal representative under the lost will. That can create standing. Next, you need to reveal the terms of the lost will precisely. You have to “establish” the will in “full and precise” terms. This means that you need some certainty. If you have a copy, that is a great start. But, there’s a lot more to do. Grab your cellphone or start writing emails. You need to prove the contents by two disinterested witnesses. The exception is if you have a “correct copy”, then one witness is OK. Finally, read the Florida Probate Rules. There is a specific rule on lost wills. Read Rule 5.510. You need to file a proper Petition.

Take These Steps for a Lost Will Florida

There is a 2012 5th District Court of Appeal opinion. This opinion is helpful in learning about a Lost Will Florida. You can read the opinion of Brennan v. Honsberger for free at the 5th DCA website. Or, just click HERE. That opinion is from November 30th, 2012. If there is a will that is KNOWN to have existed, you can try to probate it. First, file a petition. Second, understand that there is a legal PRESUMPTION that it was destroyed. This presumption arises if the will was in the possession of the deceased person. If you want the lost will probated, you have the BURDEN to overcome that presumption of destruction. You need competent substantial evidence. Next, prove up the will. If you have a copy, file it. Get a correct copy and file it. Have one or two disinterested witnesses testify. Like the will witnesses or the notary or the drafting attorney. Remember that this is an ADVERSARY proceeding under Rule. 5.025(a). That means you need evidence and the Florida Rules of Civil Procedure apply.