Q. It seems that my father lost the will that he signed some years ago. It might have been misplaced when he moved from his home into an assisted living facility two years ago, but we only just noticed its absence when we were helping him organize his papers and affairs. What do we do?
A. Surprisingly, this is not an uncommon occurrence. Indeed, the actual court form required to initiate a probate proceeding in California actually has a question asking if the will has been lost. If so, it requests that either a copy or a “statement of the testamentary words or their substance” be attached to the court petition. However, merely because the petition asks for this information, does not necessarily mean that it is a simple matter of furnishing a photocopy to the court in order to validate his will and testamentary intentions.
Indeed, under California law, if a lost will was last in the testator’s possession, if he were competent at the time of his death, and if there is no “duplicate original” that can be found, there is a presumption that the testator destroyed it with the intent to revoke it. Further, there is one California judicial opinion that has held that a photocopy of a lost will did not meet the test of being a “duplicate original”, which would actually be an original duplicate signed by the testator at the time he executed his will .
So, if his will still cannot be found at the time of your father’s death, then the presumption will apply, at least initially. At that point, unless you can produce evidence to convince the court that it was misplaced without intention to revoke it, the court would likely then proceed with the case as if he had died intestate, which means dying without a will. California law would then control what happens to his estate and the designation of beneficiaries and their corresponding shares of his estate. Unfortunately, if your father does not now have capacity to sign a new will, you will either have to convince the court after his demise that he never intended to revoke it, or have your father’s estate be distributed according to the California Law of Intestate Succession.
So, if your father is alive and able to do so, I would strongly urge him to execute a new will, and to make arrangements to keep it in a safe place. Some folks prefer to keep their original will in their bank safety deposit box. This is okay providing that the designated executor knows where that box is located and, further, knows where your father keeps the key to his box. Alternatively, your father might open a safety deposit box with two co-owners, each of whom has a key to the box, so that the co-owner (presumably his designated executor) can access the box without administrative delay following your father’s demise.
If there had been a calamity, such as a fire, or burglary, or something of that nature, and if there is evidence to believe that the will was lost or destroyed in that event, I would then urge the family to secure and keep safe a copy of the fire or police report, which hopefully references the loss of valuable papers, will, etc. That report might later be shown to the court when the executor files a formal Petition for Probate, and may then be deemed sufficient evidence to explain the “lost will”, overcome the presumption that your father intentionally destroyed it, and accept a photocopy, or statement of its contents, as sufficient evidence of his will.