No Original Will? Here's What Happens in Florida Probate

Short answer: what happens when the original will cannot be found

If there is no original copy of a will, probate can still move forward in Florida. The answer depends on the facts.

A missing original is not the same as a will that was never signed. A copy, a draft or witness testimony about the contents may still matter. Florida has specific rules for when a lost or destroyed will can be admitted to probate.

If you are the one handling the estate, start with a few simple questions. Where was the will kept? Who had access to it? What searches have been made? Those answers shape the proof the court will ask for.

Why the original signed will matters in probate

The signed original shows the court that the will was executed correctly. The original paper carries those signatures, so the court can check them directly.

A photocopy, scan or draft is different. It can show what the document said, but it cannot by itself show who signed it or when. Florida applies the rules of evidence in civil actions to probate cases unless the probate code changes them (Fla. Stat. § 731.1035). That means the court weighs a copy and testimony under ordinary evidence rules.

The will also tells the court who the personal representative (often called an executor) will be and who receives property. Without an admitted will, the court applies Florida’s intestacy rules instead.

What Florida law says about a lost or destroyed will

Florida lets an interested person ask the court to admit a lost or destroyed will. Any interested person may establish the full and precise terms of a lost or destroyed will and offer it for probate. The contents must be proved by the testimony of two disinterested witnesses. If a correct copy is provided, one disinterested witness is enough.

The court rules add more steps. Establishing and probating a lost or destroyed will must happen in one proceeding. The petition must state the facts that support relief and the contents of the will, or attach a copy if one is available. Each witness’s testimony must be written down and filed. No lost will may be admitted unless formal notice goes to those who would take the property without the will (Fla. Prob. R. 5.510).

Any interested person may start the case by petitioning for administration (Fla. Stat. § 733.202). A petition for administration under Fla. Stat. § 733.202 is the filing that opens a court case, and any interested person may file it.

Revocation: why a missing original does not settle the question

A will is revoked by an act done with the intent to revoke it. Burning, tearing, canceling, defacing, obliterating or destroying the will can revoke it, but only with that intent and purpose (Fla. Stat. § 732.506). The statute turns on intent.

A later will can also revoke an earlier one. A later inconsistent will or codicil revokes the earlier one to the extent of the inconsistency. A later writing signed with the same formalities can declare the revocation (Fla. Stat. § 732.505). The court looks at the evidence on these points, so the search for documents matters.

How copies and witness testimony are used to prove a will

A copy can support a lost will, but it does not remove every requirement. If a correct copy is provided, one disinterested witness can testify to the contents. Without a correct copy, two disinterested witnesses must testify (Fla. Stat. § 733.207).

Evidence that often helps includes the last known place the original was kept, who had access to it, what searches were made, any copies, and the drafting lawyer’s file. These facts help show what the will said and what happened to it. The court decides whether the evidence is enough.

Florida law also has a separate provision, Fla. Stat. § 733.201(3), for when it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time. If it appears to the court that the attesting witnesses cannot be found, have become incapacitated after the will was signed, or cannot testify within a reasonable time, a will may be admitted on the oath of the nominated personal representative or of a person with no interest in the estate who believes the writing is the true last will (Fla. Stat. § 733.201).

If the will cannot be admitted: intestacy and who inherits

If no will is admitted, Florida’s intestacy rules decide who inherits. Any part of an estate not effectively disposed of by will passes to the decedent’s heirs under those rules. The decedent’s death is the event that vests the heirs’ right to that property (Fla. Stat. § 732.101). The result can differ from what the person wrote down.

Timing matters here too. If a later will or codicil is found, an interested person may petition to revoke the earlier probate or to probate the later one. No will may be offered after the estate has been completely administered and the personal representative discharged (Fla. Stat. § 733.208). That is one reason early steps matter.

Process and timing: what to expect after a will cannot be located

Start with the search. The custodian of a will must deposit it with the clerk of the court within 10 days after learning the testator has died (Fla. Stat. § 732.901). The clerk must keep the original in its original form for at least 20 years.

On petition and notice, the custodian of any will can be compelled to produce and deposit it. Upon petition and notice, the custodian of any will may be compelled to produce and deposit it. If the court finds the custodian had no just or reasonable cause for failing to deposit the will, the court shall adjudge costs, damages and a reasonable attorney’s fee to the petitioner against the delinquent custodian (Fla. Stat. § 732.901(2)).

After a petition is filed, the personal representative must promptly serve a notice of administration on certain known people. Those served have 3 months after service to object to the will’s validity, venue or jurisdiction. The outside limit is the earlier of final discharge or 1 year after service (Fla. Stat. § 733.212). Fla. Stat. § 733.212 reads: “(d) That persons who may be entitled to exempt property under s. 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property.”

Common follow-up questions about lost or copied wills

Can I just write out my own will?

Talk with a probate litigation attorney about your situation

Searching for a will you cannot find, while grieving a relative, is hard. You may have been asked to handle the estate, or you may be an heir who needs to understand what the court will require. The next questions usually involve evidence, notice and deadlines.

Leslie V. Marenco is the responsible lawyer for this page. Trust Counsel, PL is in Coral Gables. The first consultation is free, confidential and carries no obligation to continue. Call (305) 707-7126 or schedule online to talk through what you’re facing.