How do you probate a will if you cannot locate the original but you know that the attorney who prepared a will has a photocopy?

Answer 1

In most, if not all, states a copy of a will can be admitted to probate under the "lost will" theory. The lost will theory is an exception to the general rule that if the original will is not found among the personal papers and possessions of the decedent, it is presumed to have been destroyed and therefore revoked by the decedent. But this is only a presumption and it may be rebutted if certain facts can be proved. Keep in mind that it is certainly possible that the will could have been simply misplaced by the testator or even stolen by some other person with the intent to suppress it. If it can be proved that the decedent did execute a will in proper fashion, that he/she did not revoke it and that the photocopy is a true copy of the original will, then the court will admit the will to probate. The photocopy of the will is not itself admitted to probate. It is used as evidence of the will that had been executed. Frequently, the judgment for probate "re-creates" the lost will by transcribing the contents of the photocopy into the body of the judgment itself. If the person wants to try to probate a lost will, he/she should get the attorney to give over the photocopy. If the attorney is unwilling, the action to probate the lost will can be filed and a subpoena issued to the attorney to deliver the copy to the court.