What Happens If I Lose My Will in Virginia?
What happens when you can’t find your loved one’s will after they have passed? If your attempts to search for the will have been unsuccessful, you may be wondering what steps you should now take if you can’t find the original. Virginia law specifically outlines options for addressing a lost will situation. This includes proving its contents or resolving the estate through intestate succession. In this article, the Virginia Beach probate attorneys at The Law Office of Angela N. Manz will discuss how to handle a lost will in Virginia.
How does the State of Virginia handle lost wills?
Virginia law presumes that when a will cannot be found after the testator’s death, it was either destroyed to revoke it or cancel its effect. The presumption is strongest when the lost will was last in the testator’s possession. The presumption is rebuttable. It becomes weaker if the original will was stored somewhere else, such as an attorney’s office or a safe deposit box. In that case, the burden of proof could shift to those claiming the testator revoked the will. To overcome the presumption that the will was revoked, a beneficiary must provide clear and convincing evidence that:
- The will was properly executed and signed
- The contents of the will are known
- The testator did not intentionally destroy the will
According to Virginia Code § 64.2-410, the court requires evidence that demonstrates that the testator intended the will to remain valid, even if the original copy cannot be found.
How do I get the court to recognize a lost will?
If the original copy cannot be located, Virginia law allows you to petition the court to prove its terms through probate. The process requires that you present evidence that meets the high standard of “clear and convincing” proof, which is stricter than the prevailing standard of proof in civil cases.
You will have to:
- File the necessary paperwork with the circuit court that details evidence of the will’s existence and contents.
- Notify all interested parties, including those who would inherit under Virginia’s intestacy laws, giving them the opportunity to participate or contest the petition.
Evidence you might need to present includes:
- A copy of the will, if it exists
- Notes from the testator’s attorney, if an attorney assisted in preparing the will
- Witness testimony, handwritten drafts, or statements from those familiar with testator’s desires
- An explanation detailing why the original will is missing
The court will then carefully evaluate the evidence to decide whether the terms of the will should be recognized during the probate process.
Talk to a Virginia Beach Estates and Trusts Attorney
The Law Office of Angela N. Manz represents the interests of Virginia Beach residents who are drafting an estate plan. Call our Virginia Beach estate planning lawyers today to schedule an appointment, and we can begin discussing your next steps right away.
