What Happens if a Will Is Lost or Destroyed in North Dakota?

Short answer

In North Dakota, a will that has been lost or physically destroyed can still be probated if someone proves its contents and that the testator did not revoke it. The probate court will consider testimony, copies, and other evidence. If the estate’s personal representative cannot establish the will, the estate may be treated as if the decedent died intestate (without a valid will).

Detailed answer — How North Dakota handles lost or destroyed wills

This section explains what typically happens in North Dakota when a will is missing or was destroyed, who has the burden of proof, and the practical steps to try to have the will admitted to probate.

Basic legal framework

North Dakota administers estates through the North Dakota probate system. If an original will cannot be located, a person seeking to probate the will (often a nominated executor or an interested person) must ask the probate court to admit the will without the original or to admit a copy or reconstructed version.

The court evaluates whether the will was validly executed and whether it was revoked. Courts commonly admit a lost or destroyed will only after proof by credible evidence about the will’s contents and proof that the loss or destruction did not result from the testator’s intent to revoke. Typical proof includes witness testimony, a copy of the will, drafts, metadata, or consistent statements the testator made about the will’s terms.

For official information about North Dakota probate law and procedures, see the North Dakota Century Code and North Dakota Judicial Branch resources: North Dakota Century Code (cencode) and North Dakota Judicial Branch.

Who bears the burden and what standard of proof applies?

The person seeking to admit a lost or destroyed will must prove its contents and existence. Many courts require clear and convincing evidence for the contents of a lost or destroyed will and for proof that it was not revoked. That means evidence must be highly and substantially more likely to be true than false, not just a preponderance. Testimony from attesting witnesses, copies, contemporaneous drafts, communications from the testator, and other corroborating documents all help meet that standard.

Common scenarios and how the court approaches each

Original will is missing but a copy exists: A copy plus witness testimony about execution and the testator’s intent can often lead to admission of the will as the testator’s last declared wishes.
Original was burned, torn, or otherwise physically destroyed: If the physical act was done by the testator intending revocation (for example, the testator expressly said “I revoke this will” while destroying it), the will is revoked. If the destruction occurred without intent to revoke (accident), the court may allow probate if evidence shows the will’s contents and lack of revocation intent.
Will was in the testator’s possession shortly before death and then disappeared: Many courts apply a presumption that a will in the testator’s last known possession that is later missing was revoked by the testator—because the testator had the opportunity to destroy it. That presumption can be rebutted by evidence (e.g., that someone else had access and removed it after the testator’s control, or that the testator never intended to revoke).
No proof can be produced: If proponents cannot prove the will’s existence or contents to the court’s satisfaction, the estate may be distributed under North Dakota’s intestacy rules (as if there were no will).

Typical evidence courts consider

Testimony from the attesting witnesses who saw the testator sign the will and can describe its terms.
Copies of the will (paper or electronic), drafts, and versions stored on a computer or cloud service.
Communications from the testator (emails, text, letters, voicemail) describing the will’s terms.
Evidence about possession and custody of the original will (who last had it, where it was kept, who had access).
Evidence contradicting destruction or showing that the destruction was accidental or caused by another person.

Procedure to try to probate a lost or destroyed will in North Dakota

Search thoroughly for the original: check safes, safety deposit boxes, attorney files, and personal papers.
If the original cannot be found, collect every relevant document and witness statement that shows the will’s terms and the fact of its execution.
File a petition with the district court in the county where the decedent lived to admit the will. The petition should explain the missing original and attach any copies or supporting evidence.
Provide notice to beneficiaries and heirs, per North Dakota probate procedure, so they can object or present contrary evidence.
The court will hold a hearing. Be prepared to present witnesses and documentary evidence to meet the required standard.
If the court admits a copy or reconstructed will, the court will issue letters testamentary or similar documents to authorize administration of the estate.

Consequences if the court does not admit the will

If the court finds that the will was revoked or cannot be proven, the decedent’s property passes according to North Dakota’s intestacy laws. That may produce a distribution different from what the decedent intended. Parties who lose out may have limited post-judgment options other than appeal or, in narrow circumstances, claims against third parties who wrongfully destroyed or withheld the will.

Practical timeline and costs

How long and how much depends on the complexity of the estate, how contentious the case is, and court schedules. A straightforward petition with a cooperative set of witnesses may be resolved in a few months. Contested proceedings that involve substantial litigation can take longer and cost more in attorney fees and expert testimony.

Helpful Hints

Start by searching everywhere the decedent kept important papers: safe, attorney’s files, bank safe-deposit box (require court order or joint access), home, and digital storage.
If you find only a copy, don’t destroy it. Preserve every version (paper or electronic).
Gather witness names and contact info immediately while memories are fresh: attesting witnesses, close friends, attorneys, and anyone who discussed the will with the testator.
Ask the testator’s lawyer (if any) whether they hold the original. Many attorneys retain original wills for safekeeping.
Keep a written log of who had access to the will and any events (moves, fires, cleanouts) that could explain the disappearance.
Be proactive—filing the petition promptly can prevent claims that someone else took or destroyed a will after death.
If you expect a dispute, consult a probate attorney early. An attorney can help frame witness testimony, collect relevant documents, and represent you in court.
If you are the testator: store your original will in a secure location, tell a trusted person where it is, and consider giving a copy to your attorney or executor so they can locate it quickly after your death.

Disclaimer: This article explains general North Dakota probate concepts only and does not constitute legal advice. Laws and court procedures vary and change. For advice about a specific situation, consult a licensed North Dakota probate attorney or contact the North Dakota Judicial Branch or review the North Dakota Century Code at the official sites above.

FastCounsel