Detailed Answer
Quick overview: If someone is withholding your father’s original will in Pennsylvania, you have several court-based tools: ask the holder to turn it over, file a petition for probate and request the court compel production, or—if the original truly cannot be produced—ask the court to admit a copy of the will after proving the will’s execution and contents. You will usually pursue these remedies in the Court of Common Pleas (Orphans’ Court division) in the county where your father lived. This is not legal advice; it is general information to help you understand the process and prepare to consult an attorney.
1) Who controls the original will?
The original will is the decedent’s property after death and typically must be produced to the court to admit the will to probate. If a family member (for example, a step-sister) has the original, she is effectively the custodian. The court can order a custodian to deliver the original will to the Register of Wills or the clerk handling probate.
2) Initial practical steps (before going to court)
- Ask for the original in writing. Send a polite, dated written request (email plus a mailed letter is good). Keep records of your communications.
- Ask for a short deadline and explain that you intend to file the will for probate if it is not produced.
- Collect supporting materials: copies of the will (photocopy, scanned copy, or draft), contact information for the drafting attorney, names of witnesses who signed the will, and any communications showing the step-sister received or acknowledged the will.
- If the holder claims an ownership right, remind them (in writing) that an original will belongs to the decedent’s estate and must be produced for probate.
3) Filing for probate when the original is being withheld
If the holder refuses to hand over the original, you should file a petition for probate in the Court of Common Pleas (Orphans’ Court division) in the county where the decedent lived. Typical court actions include:
- Petition to compel production or turnover: Ask the court to order the step-sister to turn the original will over to the register of wills or the clerk. The court can issue an order requiring production and may impose sanctions, including contempt, if she disobeys.
- Petition to admit a copy (lost or withheld original): If the original cannot be produced, Pennsylvania law allows courts to consider extrinsic evidence and admit a copy if you can prove the will’s due execution and contents. You must explain why the original is not available and present credible evidence (witness testimony, a photocopy, drafts, attorney testimony, or other proof showing the will’s execution).
- Request for provisional relief: In some urgent situations you can ask the court for temporary orders (for example, to freeze estate assets or appoint a temporary administrator) while the right to probate is resolved.
4) What proof will the court want if you don’t have the original?
The court will require clear and convincing evidence about two main points:
- Due execution: Evidence that the will was signed by the decedent and properly witnessed according to Pennsylvania law.
- Contents and authenticity: Evidence that the copy accurately shows the contents of the decedent’s last will and testament and that the original has been lost, destroyed, or is being wrongfully withheld.
Useful evidence includes: an attorney’s file or testimony, affidavits from the attesting witnesses, photocopies or drafts of the will, emails or other records showing the decedent’s intent, and testimony that the step-sister acknowledged having the original.
5) Pennsylvania statutes and where to look
Pennsylvania’s laws governing decedents’ estates and wills are in Title 20 of the Pennsylvania Consolidated Statutes. The statutes include rules for probate, admission of wills, and the powers of the Orphans’ Court. You can review Title 20 here: https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20.
Procedures for filing and hearings typically occur in the Court of Common Pleas for the county where the decedent lived. General information about Common Pleas courts is at: https://www.pacourts.us/courts/courts-of-common-pleas.
6) What remedies can the court order?
- Order the holder to deliver the original will to the register of wills or clerk.
- Impose contempt sanctions, fines, or other penalties if the holder disobeys a court order.
- Admit a copy of the will to probate if the judge finds the evidence convincing that the copy reflects the decedent’s last testament and the original is unavailable.
- Appoint an administrator or grant temporary relief to protect estate assets while the dispute is resolved.
7) Timing and next steps
Begin promptly. Estate matters often have practical timelines: debts, tax filings, and creditors may act quickly. Filing a petition early preserves options. If the holder turns over the will after you file, the court can streamline admission. If the holder refuses and litigation follows, be prepared for a hearing where you present witnesses and documentary evidence.
8) When to hire an attorney and what kind of lawyer to look for
Consider consulting a Pennsylvania attorney with experience in probate, estates, or Orphans’ Court matters if any of the following apply:
- The holder refuses to surrender the original despite written requests.
- Disputes among heirs or significant estate assets exist.
- You need to admit a copy of a will or to seek turnover or contempt relief.
Look for a lawyer who practices probate/estate administration or litigation in the Orphans’ Court. If you need help finding counsel, contact the county Bar Association or use the Pennsylvania Bar Association lawyer referral service.
9) What to expect at a hearing
The court will evaluate evidence and may hear testimony from:
- Attesting witnesses (who signed the will).
- The attorney who drafted or stored the will.
- Individuals with knowledge about where the original was kept or why it is missing.
- Affidavits and photocopies or drafts of the will.
If the court finds the proof satisfactory, it may admit a copy or order the original turned over and then admit it to probate.
Helpful Hints
- Keep all communications with the holder in writing and save proof of delivery.
- Collect every copy or draft of the will, plus emails, letters, or notes showing the decedent’s intent.
- Identify and contact the attorney who drafted the will and the witnesses who signed it as early as possible.
- Do not attempt to forcefully retrieve the original yourself—use the court to avoid escalation or allegations of wrongdoing.
- If you cannot afford an attorney, ask the county Bar Association about low-cost or pro bono options.
- File quickly. Waiting can make evidence harder to find and can allow others to take actions that complicate probate.
- Be prepared to show the court why the original is missing and why the copy (and supporting evidence) should control.
- Document the decedent’s residence and any location or safe deposit box where the will was stored—this helps the court understand custody and chain of possession.