How Alabama Probate Courts Handle an Original Will That’s Lost or Damaged in the Mail

Short answer: Losing or damaging the original will in the mail does not automatically invalidate the testator’s intentions. Alabama probate law allows a court to admit secondary proof (a photocopy, a drafter’s copy, witness testimony, and affidavits) when the original cannot be produced — but you must act quickly and provide strong proof that the will was valid and not revoked.

Detailed answer — what usually happens and what the law recognizes

This section explains the practical steps courts and interested people usually take in Alabama and the legal principles that guide those steps.

1. Two different timing situations

• If the testator is still alive when the original is lost or damaged: The safest fix is to re-create or re-execute a new valid will while the testator is competent. A new properly executed will removes most uncertainty. If re-execution is not possible, keep copies, contact the intended probate court, and consult an attorney immediately.
• If the testator has already died and the original can’t be produced: The probate process proceeds without the original only if the person seeking admission of the will can prove that a valid will existed and was not revoked. Alabama probate judges may allow admission of a copy or parol evidence when the original was lost through no fault of the proponent (for example, lost in the mail).

2. Revocation concerns and the presumption rule

Alabama law treats destruction of an original will by the testator as a revocation. That means if the original is missing, some heirs may argue the will was revoked. However, when the original was lost because of a third-party event (like the postal system), the court will not automatically treat the loss as revocation. The person asking the court to admit the will must present evidence showing the will was validly executed and that the testator did not intend to revoke it.

3. Types of proof probate courts accept

If the original will cannot be located, courts typically consider:

• A clear, legible copy of the will (typed or scanned).
• Affidavits from the attesting/subscribing witnesses who saw the will signed. In many cases, testimony or sworn affidavits from those witnesses is the strongest proof.
• Affidavits from the attorney who drafted or mailed the will, explaining the chain of custody (for example, that the attorney mailed the original by certified mail and it never returned).
• Evidence of mailing or tracking records from the postal carrier or courier.
• Other corroborating documents (drafts, email instructions, notes, or contemporaneous records showing the testator’s intent).

4. What the probate petition usually asks the court to do

The petitioner typically files a petition to admit to probate a copy of the will (or a petition to probate a will that cannot be found). The filing will include copies, affidavits, and a factual explanation of how the original was lost or damaged (for example, damaged en route to the probate office). The court will decide whether the proof is sufficient. If satisfied, the court may admit the copy to probate and proceed to appoint a personal representative.

5. Practical risks and likely delays

Expect additional court time and possible contests. Interested persons (heirs, beneficiaries) may object and argue the will was revoked. The absence of the original often creates a factual fight over authenticity and testamentary intent, which may lengthen administration and increase costs.

Alabama statutes and where to look

Alabama’s probate and wills rules appear in the Code of Alabama under the probate/wills title. For the court’s specific procedures and the statute text, see the Code of Alabama (Title on probate/wills) at the Alabama Legislature site: https://www.legislature.state.al.us/. Search Title 43 (Probate/Wills) for statutory sections that govern execution, revocation, and proof of wills. If you plan to file, your local probate court clerk can identify the forms and local procedures that apply.

Immediate steps to take if the original will was lost or damaged in the mail

1. Preserve any copies you have (photocopies, PDFs, drafts). Make multiple certified copies and retain originals of digital files.
2. Collect evidence of mailing: tracking numbers, certified-mail receipts, courier proof, and any written communications about the mailing.
3. Get written affidavits from the will drafter, the attesting witnesses, and anyone involved in packing or mailing the document. These affidavits should describe the will’s last known location, the signing, and the fact that the original cannot be found.
4. Notify the probate court clerk where the decedent resided (or the intended filing court) and explain the situation. Ask about the local procedure for admitting a copy or proving a lost will.
5. Contact the postal carrier or courier promptly to open an investigation and obtain any available records.
6. Consult a probate attorney immediately. Courts treat lost originals as higher-risk matters that benefit from early legal help, especially if there may be disputes.

Hypothetical example

Mrs. A signs a properly witnessed will. Her attorney places the signed original into certified mail addressed to the probate court for safekeeping, and provides Mrs. A and the subscribing witnesses with copies. The envelope never arrives at the probate office and is returned as undeliverable. After Mrs. A dies, the attorney files a petition to admit the copy of the will. The petition includes the project file copy, the attorney’s affidavit describing the mailings, affidavits from the two subscribing witnesses who attest to the execution, and the carrier’s lost-mail notice. With that evidence a judge may admit the copy to probate because the loss appears to be a third-party mailing failure and not an act of revocation by Mrs. A.

Disclaimer

This information is educational only and does not constitute legal advice. I am not a lawyer. For guidance specific to your circumstances, consult a licensed Alabama probate attorney. Courts vary in practice, and the precise rules and required filings can differ by county.

Helpful Hints

• Act quickly: mailing investigations and witness memories fade.
• Keep copies of everything: drafts, emails, signed receipts, and carrier notices.
• Get written, sworn statements from anyone present at signing or who handled the document.
• Ask the mail carrier for an official lost-mail or claims report; that helps establish the chain of custody.
• Contact the probate court clerk early to learn local filing requirements for lost or destroyed wills.
• If the testator is alive, re-execute the will with witnesses rather than rely on reconstruction.
• Be prepared for challenges: losing the original invites disputes; clear, contemporaneous proof reduces that risk.