Lost Will in Alabama: What Happens If You Cannot Find the Original?
You know your mom had a will. You may have even seen it or know that she worked with an attorney to prepare it. But after her death, you cannot find the original document.
Does that mean her wishes will not be followed?
Not necessarily. Alabama law allows a lost or destroyed will to be established in certain circumstances. The family must provide sufficient evidence that the will was properly executed, was not revoked, and contained the provisions being presented to the court.
Here is what to know if you cannot find the original will in Alabama.
Can a Copy of a Lost Will Be Used in Alabama?
Potentially, yes. A copy may help establish the terms of a missing will, but finding a copy does not automatically mean the court will admit it to probate.
The family generally must establish that:
The will existed and was properly signed and witnessed.
The original was lost or destroyed.
The person who made the will did not revoke it.
The will’s contents can be established.
A signed copy can be valuable evidence. The drafting attorney’s records and testimony from people familiar with the will may also help.
Can the Will’s Witnesses Be Asked to Testify?
Yes. The people who signed the will as witnesses may be called to testify about its execution. Their testimony may help establish that the will was properly signed and witnessed.
Other testimony may be important, too. For example, someone who read the will or heard it read and remembers its contents may be able to testify about what it said. The exact words do not necessarily have to be remembered, but the substance of the will’s provisions must be established.
The evidence must also address whether the will was revoked. The court will consider the available evidence when deciding whether the lost will can be established.
What If the Original Will Was Kept at Home?
Where the original was last kept can be especially important.
If the person who made the will kept the original and it cannot be found after death, Alabama law may presume that the person intentionally destroyed it to revoke it. This presumption can be challenged, but the family must provide evidence that the will was not revoked.
Relevant evidence may include:
Whether the person continued to discuss or refer to the will.
Whether anyone else had access to the place where it was stored.
Whether the original may have been misplaced, accidentally destroyed, or removed by someone else.
Whether a copy or the drafting attorney’s records still exist.
If the original was kept by the drafting attorney rather than the person who made it, the circumstances surrounding its absence may be different. Explain to the probate attorney where the original was last known to be and what efforts have been made to locate it.
What Should You Do If You Cannot Find the Original Will?
Before assuming the estate must be handled without a will, take these steps:
Search for the original. Check home files, safes, safe-deposit boxes, and other places where important documents were kept.
Contact the drafting attorney. Ask whether the attorney has a copy, records about the signing, or information about whether a later will was prepared.
Look for a newer will. A later document may have changed or revoked the earlier will.
Preserve copies and related records. Keep any version of the will, correspondence with the attorney, and other documents that may help establish its existence and contents.
Speak with an Alabama probate attorney. An attorney can evaluate the evidence, explain what may be required to establish the lost will, and help determine the next steps.
What Happens If the Lost Will Cannot Be Proven?
If the court cannot establish the lost will, the estate may have to be distributed under Alabama’s intestacy laws. These laws determine who inherits when a person dies without a valid will.
The result may differ from what the person intended. For example, the law may distribute property differently from the missing will’s instructions or may not provide for someone the person intended to benefit.
To learn more about how property may be distributed when there is no valid will, read our article: What Happens When You Die Without a Will in Alabama?
Can a Revocable Living Trust Help Avoid Problems With a Lost Will?
A revocable living trust can provide another way to plan for the distribution of your assets after death. Unlike a will, which generally takes effect at death, a trust can be created and funded during your lifetime.
When assets are transferred into a trust, there may be records showing that the trust exists and owns those assets. For example, a deed may identify the trust as the owner of real estate, or financial institution records may reflect that an account is held in the name of the trust. These records can help establish the trust’s existence and ownership of the property.
A revocable living trust also allows you to specify who should receive the trust assets after your death. If the trust is properly created and funded, and the assets remain in the trust at your death, those assets can generally be distributed according to the trust’s terms without going through probate.
However, a revocable living trust is not beyond dispute. You generally retain the ability to amend or revoke it during your lifetime, and disputes can arise over whether the trust was validly created, amended, or revoked. Properly funding the trust and keeping its records current are important steps in carrying out your plan.
For families who want to make their wishes clear and help simplify the transfer of assets, a revocable living trust may be worth considering as part of a broader estate plan.
Frequently Asked Questions
Will a photocopy of a will be accepted by an Alabama probate court?
Possibly. A copy may help establish a lost will, but it is not automatically accepted. The family must provide sufficient evidence to satisfy the applicable legal requirements.
Do the witnesses who signed the will have to testify?
They may be called to testify about how the will was signed and witnessed. Other witnesses may be important, too, particularly people who read the will or heard it read and remember its contents. The evidence needed depends on the circumstances.
Does a missing original mean the will was revoked?
Not necessarily. However, if the original was in the person’s possession and cannot be found after death, Alabama law may presume that the person intentionally revoked it. Evidence may be used to challenge that presumption.
What if the attorney has a copy of the will?
Contact the attorney and request the available records. A copy and information about how the will was prepared, signed, and stored may help the family determine whether it can be established.
Your Next Step
Not being able to find a loved one’s will can create uncertainty during a difficult time. The absence of the original does not automatically mean the person’s wishes cannot be honored, but the available evidence matters.
At Provident Law, we help Alabama families navigate probate and understand their options after the loss of a loved one. If you believe a will existed but cannot find the original, we can help you understand the steps that may be available.
About the Author
Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families in Alabama and Florida navigate complex legal matters with confidence.
Disclaimer
This article is intended to provide general information and help you think through important estate planning decisions. It is not legal advice and does not create an attorney-client relationship. Because every situation is different, we encourage you to consult with an experienced estate planning attorney to discuss your specific goals and needs.
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