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I need to "Lodge" a will; however, the original can't be located. Can I lodge a copy and if not what then?

Sacramento, CA |

I need to "Lodge" a will; however, the original can't be located. Can I lodge a copy and if not what then?

Attorney Answers 5

Posted

Both attorneys offer sound advice and answer the question. So you really need to find the original will if possible. Check the decedent's home completely, see if there was a safe deposit box at a local bank and check his checking account for the last few years to see if he paid an attorney. Finally, check the laws of intestate succession to see how you would stand in that case. If it is the same as you would under the copy of the will, then just probate the estate without the will and let the laws of intestacy control.

Hope this helps.

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Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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Posted

Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

In California, when the original will is lost, there is a rebuttable presumption that the will was destroyed. If you wish to present a copy of the will to the Court, you will have the burden to rebut presumption of destruction and provide evidence to satisfy the court the deceased did not destroy of revoke the will. If you succeed, the Court may probate the copy of the will. Otherwise, the Probate Court will apply the intestacy statutes to determine who will take as heirs. You should consult your own attorney to protect your legal rights.

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1 comment

L Christopher Arvin

L Christopher Arvin

Posted

Very good reply. Be ready for objections if this poster is not the sole heir

Posted

no.

you don't "lodge" a copy - you "lodge" the original.

you have to prove this copy. makes sense - testator could have ripped it up / destroyed original ... likely with the intent to eliminate what he/she did!

that being said, i ran into this, passed the requirements, court admitted... but you have to satisfy many requirements and obtain consent of court .. gets more difficult obviously if there are individuals who would object (e.g., anyone who would receive properties if there was no will - e.g., intestate succession).

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Posted

You have received some good advice from the other attorneys. In this case, you need to consult with a probate attorney who will carefully review the copy of the will and explain your options. If the decision is to attempt to probate the copy of the will, a petition must be filed with the court which actually requests an order allowing the probate of a "lost will", whereby you must meet several requirements so that the court can determine the original will was actually still in place and valid at the time of the decedent's death. The point of doing all of this would be to have the person named in the will as executor appointed, and the estate proceed through the probate process. That may, or may not, be necessary, depending upon the status of the decedent's estate. So, I do think you will benefit from consulting immediately with an attorney.

Deborah is licensed to practice in the state of California. Telephone is 916-508-1132.

This response is intended as general information applicable to California cases only, and does not create an attorney/client relationship. Additional facts must be known to provide a full and complete answer. You should consult an attorney experienced in this area of the law prior to making any final decision.

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Posted

Honestly, it depends on why you need to "lodge" the will. If you are trying to open a probate, can't find the original, and the original was last in the decedent's possession, then you've got a tough row to hoe. However, it is possible if you have certain evidence.

If you are instead talking about the requirement to deliver the will of a decedent to a clerk of the court in accordance with probate code 8200, then that's a different story. That requirement applies only if no probate has been opened, the original will still needs to be delivered to the clerk who then keeps the will on deposit for all eternity. However, it doesn't sound like you have the original will.

If you need a copy of the will for some other purpose, a copy may or may not work.

My suggestion: find yourself a lawyer. Sometimes a court examiner or court staff attorney will answer procedural questions like this, but usually not. If whatever reason you're in court is worth fighting over, its probably worth hiring a lawyer over.

The foregoing does not constitute legal advice and does not form an attorney-client relationship. This information is general in nature and is intended for the public as a whole. Also, this message is not privileged, is not confidential, and you should not include any personally-identifiable information that you would like kept private on the message board. Any person may contact my office directly, but doing so only makes one a potential client, not an actual client. I may or may not agree to represent you after learning more details about your specific case.

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