You are ready to begin the probate process, but when it comes time to submit to your friend or loved one’s will, you cannot find it. What can you do?
If you are a named estate executor or an interested person, it is possible to probate a copy of the decedent’s Last Will and Testament. Under Georgia law OCGA § 53-3-6, “if a will is lost during the testator’s life, destroyed without the consent of the testator during the testator’s lifetime, or lost or destroyed subsequent to the death of the testator, a copy of the will, clearly proved to be such by the subscribing witnesses and other evidence may be admitted to probate and record in lieu of the original.”
For the purposes of probate, the court will presume that if a will is missing, it is because the testator destroyed the original will. This means that he or she died without a will in place or that an unrevoked previous will control and should be submitted to the court.
However, sometimes a will is missing because it is lost and not because the Testator destroyed it or intended to revoke it. In this case, a copy of the will should be presented to the court with an explanation for why the original will is lost. The court will be looking for a preponderance of the evidence showing the original was lost rather than destroyed. It is the responsibility of the person seeking to probate the will to provide the court with evidence in the petition that allows the court to find that the burden of proof is met. If the copy of the will does not include self-proving affidavits from the witnesses, Georgia law also requires an affidavit from at least one of the witnesses who signed the testator’s will. (There are also provisions in place if the witnesses cannot be found after a good faith effort to locate them).
If all beneficiaries and/or potential heirs consent to probating a copy of the will, the court will likely accept the copy. However, if one or more of the beneficiaries or heirs believe the will was purposely destroyed and do not want to submit a copy of the will for probate – then this is a different situation. If everyone is not in agreement, a notice will be sent to all of the beneficiaries or heirs who do not consent to filing a copy of the will. Once the notice is sent, the parties will have the opportunity to voice their objections in court. The court will determine whether the challenging beneficiaries or heirs have met their burden of proof, and whether a copy of the will can be admitted to probate.
© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.
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