Detailed Answer — How Massachusetts handles a lost or damaged original will sent to the Probate Court

Short answer: Losing the original will in the mail does not automatically prevent probate, but you must act quickly and provide strong evidence of the will’s contents and valid execution. Massachusetts permits courts to admit a will that was lost or destroyed if the will’s terms and valid signing can be proved. The process usually requires a petition to the Probate and Family Court and affidavits or witness testimony to establish what the original contained and that it was not revoked by the testator.

What the law permits

Massachusetts law governing wills and probate is found in the Massachusetts General Laws, Chapter 190B (Probate Code). The Probate and Family Court has statutory authority and procedures to decide whether a will may be admitted when the original is lost or destroyed. See Chapter 190B: https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/Chapter190B and practical guidance from the Probate & Family Court: https://www.mass.gov/orgs/probate-and-family-court.

Typical court approach

• The court will require proof of the will’s contents. If the original is missing, the court can admit a copy or other evidence of the will’s terms if that proof is convincing.
• The court will require proof the will was properly executed (signed by the testator and witnessed as required). That proof usually comes from the sworn testimony (affidavits) of the subscribing witnesses or other competent evidence.
• The court will consider whether the loss or damage resulted from the testator’s intentional act to revoke the will. A will is revoked if the testator destroyed it with intent to revoke; an accidental loss in the mail is not proof of revocation, but the court examines evidence about intent.
• If the court is not satisfied the lost will existed as claimed and was valid when lost, the estate may fall to intestacy rules (distribution as if there were no valid will).

What you will likely have to file

If the original is lost or damaged in transit, expect to file a petition with the Probate and Family Court to admit the will or to explain why the original cannot be produced. In that petition you should explain the facts (how and when the will was mailed), attach any copy of the will you have, and request that the court admit the copy or other proof into probate.

Evidence that helps prove a lost/damaged will

Stronger evidence makes it much more likely the court will admit a will without the original. Useful evidence includes:

• A copy of the will (typed or photocopy) or a scanned image.
• Affidavits from the lawyer who prepared the will or from people who saw the original and can describe its contents and signing.
• Affidavits or testimony from the subscribing witnesses describing the signing ceremony (who signed, that the testator had capacity, and that they signed in the testator’s presence).
• Evidence about the mailing chain: certified-mail receipts, tracking records, proof of delivery attempts, or postal inquiry results.
• Any contemporaneous notes, drafts, or related documents that corroborate the will’s terms.

What to do right away

1. Contact the Probate and Family Court clerk where the will was to be filed. Ask for the court’s instructions about filing a petition for probate of a lost or destroyed will.
2. Contact the post office or courier immediately to open an inquiry and get tracking or delivery documentation.
3. Gather any copy of the will, drafts, or digital scans. Collect contact information for the attorney who prepared the will and for the subscribing witnesses.
4. Ask witnesses and the drafting attorney to prepare sworn affidavits describing the signing and the will’s contents.
5. Consider contacting a probate attorney promptly — they can draft the petition and present the evidence persuasively to the court.

Possible outcomes

• The court admits a copy or other proof of the will into probate and the estate is distributed under the will.
• The court finds the evidence insufficient and refuses to admit the copy — the estate then proceeds under intestacy rules.
• The court finds evidence that the testator revoked the will (for example, by intentionally destroying the original) and therefore refuses probate.

Practical tips to avoid this problem

Don’t mail originals if you can avoid it. Use in-person filing, hand delivery, or work with an attorney who files on your behalf. If you must mail a will, use certified or registered mail with tracking and retain receipts. Keep multiple signed originals in safe places and keep scanned copies in secure electronic storage.

Resources: Probate & Family Court general info — https://www.mass.gov/orgs/probate-and-family-court. Overview of probating a will in Massachusetts — https://www.mass.gov/how-to/probate-a-will-in-massachusetts. For statutory background, see M.G.L. c. 190B: https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/Chapter190B.

Disclaimer

This article explains general principles of Massachusetts probate law and common court practices, but it is not legal advice. It does not create an attorney-client relationship. For help tailored to your situation, consult a licensed Massachusetts probate attorney.

Helpful Hints

• Do not assume loss equals revocation. The court looks for intent.
• Collect and preserve all mailing and tracking records immediately.
• Get sworn statements from the will’s witnesses and the drafting attorney as soon as possible.
• If you have only a copy, label it “copy” and do not alter it; the court may consider it with supporting testimony.
• Hire a probate attorney to prepare the petition and present proof — courts give weight to organized, live testimony and properly drafted affidavits.
• If an estate is time-sensitive (creditors, assets with deadlines), file a short explanatory petition or emergency paperwork to protect estate interests while you assemble proof.