Businessman Showing Copy of Last Will and Testament Form

I Lost My Mom’s Original Will,
But I Have a Copy

Law Office of Rodney Gould Aug. 22, 2022

The final wishes of our loved ones are usually spelled out in a document called “a last will and testament,” or a will. Those who write a will should keep the document in a secure place and let their attorney and/or loved ones know where they keep it and how to access it.

But, what if the only document you have is a copy of your loved one’s will? Can you actually use a copy of the will drafted by your mom, dad, grandparent, or another family member in order to carry out their wishes and distribute assets?

The answers to these questions depend on your particular circumstances, so you might want to schedule a consultation with a knowledgeable wills attorney. Rodney Gould has decades of experience helping residents of California with all aspects of estate planning, including drafting and probating wills. The Law Office of Rodney Gould serves clients in Los Angeles and surrounding areas, including West Hollywood, Sherman Oaks, Beverly Hills, and Studio City.

What Makes a Valid Will in California?

A will is a written document that spells out a loved one’s wishes. In particular, the document is used to outline who should receive assets after the individual dies. However, there are certain requirements a will must meet in order to be considered valid. California law sets forth the following requirements for a valid will:

  1. The testator (the person who writes the document) should be at least 18 years of age.

  2. The testator should be of sound mind and memory and not suffer from any mental illnesses that impair their reasoning and decision-making ability.

  3. The testator makes decisions freely and voluntarily when drafting a will.

  4. The document is in writing.

  5. The will is signed by the testator in the presence of two competent witnesses who are not interested as beneficiaries under the will.

A will is considered invalid if it does not meet any of the above requirements.

Why Having a Will Is Important

A will is one of the most important documents a person can prepare in their lifetime. Having a will gives the testator and their loved ones peace of mind. The benefits of writing a will include but are not limited to:

  • You can specify who should get your assets after you pass away.

  • You can appoint a person to take care of your minor children.

  • You can choose the executor of your estate, also known as the personal representative.

  • A will can prevent disputes and disagreements among your loved ones.

  • A will can be used to make gifts and charitable donations.

One of the most prominent advantages of having a will is that you can control who will inherit what after your death. Without a will, your property would be divided among family members based on California’s intestate succession law. Despite the benefits, a nationwide survey cited by the American Association of Retired Persons (AARP) revealed that only about 40% of Americans have a will or trust.

What Happens if I Only Have a Copy of My Loved One’s Will?

If your loved one passed away and you know that they left behind a will, you will need to locate the document. Sometimes, relatives are not informed of where the document is located. It is also common for relatives to have a copy of the will but not the original document. Can you actually admit a copy of your loved one’s will to probate?

When admitting a copy of a lost will, you must overcome a presumption that the original document was intentionally revoked or destroyed by the deceased person. There are a few elements to establish to overcome the presumption. In particular, you must prove that:

  1. The original document was executed by the testator during their lifetime.

  2. The contents of the copy are the same as in the original document.

  3. The testator did not intentionally revoke or destroy the will before the death.

Often, people rely on witness testimony to overcome the presumption when admitting a copy of a lost will to probate. Consider contacting an experienced estate planning attorney to assist you with proving that a copy of your loved one’s will is valid.

Work With an Experienced California Estate Planning Attorney

Whether you are an executor, beneficiary, or heir, you may need legal guidance from a skilled attorney when attempting to probate a lost will. Rodney Gould knows all the intricacies of the probate process and can explain what you can do if you lose or cannot find a loved one’s original will but have a copy. Reach out to the Law Office of Rodney Gould office in Los Angeles, California, for a free case review.