During our lifetimes, we can often make right things that go wrong, or we can replace lost or stolen items.
But all that ends when we die.
Which brings up the question of what happens if there is a lost or destroyed Will in Florida.
Obviously once you are dead, you cannot re-write or replace a lost or destroyed Last Will and Testament (“Will”).
So what happens when a decedent’s Will has been lost or destroyed? Can an estate administration go forward?
The Importance of Having a Will
Without question, one of the most important documents you will ever create in your life is your Will.
Your Will performs a number of important duties after you die.
It gives specific directions as to how you want your estate distributed after your death.
It directs who should get what and how much of your personal and real property.
Your Will can also be used to name guardians for any minor children.
It also indicates what sources estate taxes and debts should be paid from.
And, if you have a revocable living trust (“trust”) at the time of your death, a pour over Will ensures that any assets not properly transferred to the trust at the time of your death will ultimately get transferred to the trust when you die.
So, having a valid Will is critical for all adults who may own property (money, bank accounts, cars, jewelry, etc.) of any kind.
Having a Will Does Not Mean You Completely Avoid Probate
Probate lawyers everywhere will tell you that you should have a valid Will in place in order to avoid probate.
Unfortunately, many people misunderstand this and think that it means if you have a Will, then you will completely avoid the probate court.
Your estate still must be probated and your Will still must be presented to the probate court.
Once your Will has been filed with the probate court, the judge must determine (among other things) whether it is valid. If it is, then distribution of your estate can proceed according to the terms of your Will.
The probate court oversees the administration of any estate – whether the person had a Will (died testate) or not (died intestate).
For those decedents who had a valid Will prior to death, the probate process is (generally speaking) quicker and less costly than those who died without a Will. The probate process for those who die intestate is far more time-consuming and expensive. This is what estate lawyers warn against when they say you must have a valid Will in place in order to avoid probate.
So, then, the first step in the administration of the estate of any decedent is to present the Will (assuming there is one) to the probate court.
But what if the Will is missing or has been destroyed?
Well, in Florida, there is a process for that.
Establishing Lost or Destroyed Wills in Florida
Florida’s laws provide a process by which a lost or destroyed Will can be established.
Doing this is by no means easy, so if you are unable to locate your loved one’s Will, or it has been destroyed, please consult with an experienced Florida probate lawyer.
The laws surrounding establishing a lost or destroyed Will must be followed precisely.
If there is no copy of the Will, then a petition will need to be filed with the probate court in order to establish and probate the Will.
Where there is no copy of the Will, establishing the Will requires the testimony of two disinterested witnesses. These witnesses will be required to testify—specifically—with regard to what was in the original document.
Establishing a lost or destroyed Will when there is no copy of the Will available is, as you can imagine, very difficult to do. When there is no copy of the Will, it can be very difficult to identify and locate the witnesses who signed the Will.
Plus, the two witnesses who testify about the Will’s contents must be able to recall it as specifically as possible.
Compounding these difficulties is the fact that, when a Will cannot be located, the Florida courts presume that it was intentionally destroyed by the testator as a means of revoking the Will.
Can a lost or destroyed Will be established and proven in Florida?
But it will require significant effort and the assistance of knowledgeable and experienced probate counsel.
Bringing You Peace of Mind With Customized Estate Plans
If you have estate planning needs, protecting your family is just one phone call away. At the Law Offices of Samantha J. Fitzgerald, we create estate plans as individualized as you are. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Connect with us on Facebook or Instagram or call us at 954-580-3690.