What happens when you can’t find the Will?!

There are certain instances in Florida probate cases where the absence of an original version a Florida will can create serious problems for those anticipating an inheritance.  For instance, let’s say that you were a close friend of a decedent from Aventura who promised to leave you a significant portion of his assets.  Let’s further suppose that only a copy of his will was found – no original.  What happens?

• Under Florida law, if the original will cannot be located, it is presumed destroyed with the intent to revoke the will.
• The proponent of the will must come forward with evidence to rebut the presumptionof the decedent’s destroying the will with the intent to revoke.
• The “burden of proof” is on the proponent of the will.
• Meaning, unless there is enough evidence to convince the courts that the decedent did not intend to destroy his will, the copy will likely be ignored.

Under Florida law, the presumption may be countered with evidence of destruction of the original by a third party with a motive and opportunity to destroy the original; evidence that the will was accidentally destroyed; evidence that the original will had been seen among the decedent’s papers after death; and evidence that the decedent lacked capacity to revoke.

So, what can you do if you can’t find your mother or father’s will?  Any Palm Beach Probate Litigation attorney can tell you that the best case scenario would be to locate the original.  However, since that is almost never the case, typically resorting to one of the methods above will be the next best alternative.

See http://www.pankauskilawfirm.com/ for videos and information on Wills in Florida, Florida Trust Law, Estate Planning, and Estate Administration in Florida.