When a family addresses probating the estate of a deceased loved one, a common concern is what happens if the family cannot locate the original Last Will and Testament. A frequent question is whether a copy of the will can be probated.
Under Michigan law, the answer is maybe (or maybe not). Whether you can probate a copy of a will depends entirely on the specific circumstances and underlying facts. Obtaining the answer requires probate court proceedings, presentation of evidence at a hearing, and ultimately a decision by a probate judge.
If the court concludes that probating a copy is not permissible, the estate will be distributed according to Michigan laws of intestate succession. That means the distribution may be inconsistent with the wishes of the decedent expressed in the will.
If an original will is lost or destroyed, several provisions of the Michigan Estates and Protected Individuals Code (EPIC) apply. First, when a petition for probate is filed, MCL 700.3402 requires the petition to state whether the executed original of the decedent’s will accompanies the petition or is in the court’s possession. The law also permits submitting an authenticated copy of a will probated in another jurisdiction.
If the original will cannot be found, the petition must state that the original will is lost, destroyed, or otherwise unavailable. The petition also must set forth the contents of the will.
The petitioner must prove specific facts to the probate judge, including that the original existed and was executed as required by Michigan law. The petitioner also must demonstrate to the court through clear and convincing evidence that the copy of the will is an exact duplicate of the original will.
Another hurdle is overcoming a presumption that arises under a statutory provision stating that destruction of an original will by the testator constitutes revocation of the will. If a decedent had possession of an original will that cannot be located, a rebuttable presumption arises that the decedent intentionally destroyed the original for the purpose of revoking it. The petitioner requesting probate of a copy of a will must provide evidence that the decedent would not have destroyed the original will to revoke it and did not intend revocation. The deceased person’s own statements may be used to demonstrate those facts.
Whether or not a probate court grants a petition to probate a copy of a will depends entirely on the specific situation, the evidence presented to the court, and the judge’s conclusions based on that evidence. In such cases, Michigan courts have both allowed and denied probate of a copy of the original will. For these reasons, representation by an experienced probate litigation attorney is essential in proceedings relating to probate of a copy of a will.
Given the uncertainty of probating a copy of a will, everyone who makes a will should take appropriate steps to safeguard their original will and all other estate documents. Hiding your original will to maintain the privacy of the contents can seriously backfire and result in your beneficiaries not receiving your estate as you intend. In the absence of a will that can be probated, your estate will pass by the laws of intestate succession.
When you make a will, you should immediately take the following steps to safeguard your original will:
- Always keep your original will and other estate documents in a safe and secure place, so they are protected from fire, water, and other damage.
- Be certain that at least one other trusted person, such as the executor of your will or a family member, knows where the original will is and can access it.
- Make sure that all your family members take the same steps that you do to safeguard their estate plan documents, including the original will.
If you regularly review your estate plan as you should, you will need to locate your original will. If you cannot find it, you should immediately take steps to put a new will in place by contacting a knowledgeable estate planning attorney.
If your loved one passed away and you cannot locate the original will, our probate litigation attorneys at BRMM are here to assist you and your family. We will discuss your situation, help you attempt to locate the will, and seek assistance from the probate court in appropriate circumstances.
If you cannot find your original will or other estate plan documents, our BRMM estate planning attorneys can assist with replacing the necessary documents. Our counsel includes explaining how to safeguard your documents to ensure your loved ones will be able to access them when necessary.
BRMM has provided legal services to clients for more than 40 years. Our compassion, credentials, and commitment set us apart. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan. Call us to schedule a consultation.
This article was provided by Don L. Rosenberg, Co-Founder of the Law Firm of Barron, Rosenberg, Mayoras & Mayoras, one of Michigan’s TOP Elder Law & Estate Planning Law Firms. Attorney Rosenberg and his firm are Members of the National ElderCare Matters Alliance and have a Featured Listing on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the issues of Aging.
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