Detailed Answer — How Washington Treats Lost or Destroyed Wills
This section explains what typically happens in Washington when an original will cannot be found after the testator (the person who made the will) dies. It covers the legal presumption of revocation, how a missing will can still be admitted to probate, and the steps an interested person should take.
Key legal rule
Under Washington law, an original will that is missing or physically destroyed raises two basic possibilities:
- If the decedent destroyed or mutilated the will with the intent to revoke it, the act creates a presumption that the will was revoked.
- If the will is missing or destroyed for reasons other than an intentional revocation (for example, lost, damaged accidentally, or destroyed by someone else), a copy or other proof of the will can be offered to the court and may be admitted to probate if there is sufficient evidence of the will’s contents and that the decedent did not intend to revoke it.
The Washington statute that governs proof of a lost or destroyed will is RCW 11.12.220. You can read the statute at the Washington State Legislature site: RCW 11.12.220. For general probate law, see the Revised Code of Washington Title 11: RCW Title 11.
How a probate court evaluates a missing or destroyed will
When an original will cannot be produced, a Washington superior court will typically require proof of two things before admitting a copy or other evidence of the will:
- That the will existed and its contents (what the will said), and
- That the will was not revoked by the testator prior to death.
The court will look at all available evidence. Typical forms of evidence that courts accept include:
- A complete, authenticated copy of the will (typed or photocopy).
- A self-proving affidavit or attestation certificate that was signed by the testator and the witnesses (if found separately from the original will).
- Testimony from witnesses who can identify the will’s content, who saw the testator sign it, or who can attest to the testator’s statements about the will and whether the testator intended to revoke it.
- Documentary evidence such as drafts, email instructions about estate plans, bank or attorney records showing the will’s preparation and storage, or safe-deposit box logs.
Typical court process
Steps in most counties follow this pattern:
- An interested person (often the nominated personal representative or an heir) files a petition with the county superior court asking the court to admit the copy or provide a judicial determination about the lost or destroyed will.
- The petitioner must provide notice to interested parties (heirs, beneficiaries, creditors) so they can object if they believe the will was revoked or the copy is inaccurate.
- The court may hold a hearing where witnesses testify about the will’s existence, contents, and circumstances around its loss or destruction.
- If the court finds sufficient evidence that the will existed and was not revoked, the court may admit a copy as the testator’s will and allow probate to proceed as if the original were present. If the court finds the will was revoked or evidence is insufficient, the estate may pass by intestacy (according to Washington’s intestacy rules) or under any other validly executed will.
Effect of admission or failure to prove the will
If the court admits a copy or proves the will despite the missing original, the probate will generally follow the terms of that will. If the court refuses to admit proof or finds a valid revocation, the estate will be distributed according to intestacy law or any other valid later will or trust. Intestacy rules and related probate procedures are found throughout RCW Title 11: RCW Title 11.
Common scenarios (hypotheticals)
Example A — Accidental loss: A testator executed a will with two witnesses and later the original was accidentally destroyed in a flood. A complete, dated photocopy and the witnesses’ testimony about the signing are available. The court may admit the copy if it is convinced the testator did not intend to revoke.
Example B — Suspected revocation: A testator told family members shortly before death that they tore up their will and threw it away. Even if no physical original is found, the testimony that the testator destroyed the will with the intent to revoke creates a strong presumption that the will is revoked; the court would likely refuse to admit a copy.
Who should act and when?
If you believe a will is lost or destroyed, act quickly. The nominated personal representative or an interested beneficiary should search for the original, preserve any copies, gather witnesses, and file a petition with the probate court if necessary. Because timelines and procedures differ by county and case facts, you should consult a probate attorney promptly.
Helpful Hints
- Search first: check the decedent’s home, safe-deposit boxes, attorneys’ offices, bank safe storage, and among close family members.
- Look for a self-proving affidavit — it could exist separately from the original will and can simplify probate if found.
- Collect evidence: photocopies, drafts, emails, attorney file notes, and witness contact information help prove the will’s contents and circumstances.
- Preserve evidence of loss or destruction (photograph the scene, keep damaged fragments, keep chain-of-custody information).
- Notify likely heirs and beneficiaries early to reduce later disputes and ensure required legal notices are handled properly.
- File a petition in superior court: a probate attorney can draft the petition to admit lost or destroyed wills under RCW procedures and represent you at the hearing.
- Consider alternatives for the future: a revocable trust or maintaining clear electronic copies and a self-proving affidavit can reduce the risk of these disputes.
- Act quickly: delays make it harder to locate witnesses or evidence and can complicate probate administration.
Disclaimer: This information explains general Washington probate principles; it is educational only and not legal advice. Laws change and every case depends on its facts. Consult a licensed Washington probate attorney for advice about a specific situation.