What to do if the original will is lost or damaged in the mail before it reaches the courthouse

Quick overview: If an original will is lost or damaged while being mailed to the probate court, California law allows the court to admit a copy or other proof of the will’s terms if the person asking the court to admit the will proves the contents and shows the decedent did not revoke it. The court will require clear and convincing evidence before admitting a will that cannot be presented in its original signed form. This article explains the process, what evidence helps, immediate steps to take, and when to get an attorney.

Disclaimer

This is general information only and not legal advice. I am not a lawyer. For help with a particular case, consult a licensed California attorney who can advise you about your facts and represent you in court.

Detailed answer: how California courts handle a will that was lost or damaged in the mail

California permits probate courts to admit a will into probate even if the original cannot be produced because it was lost or destroyed, but the person asking the court to admit the will (the proponent) must meet a high burden of proof.

What the court needs to see

• Proof of the will’s contents. This can be a certified copy, a photocopy, a draft, or consistent witness testimony describing the will’s terms. The court will weigh the reliability of each item.
• Proof that the decedent did not revoke the will. Loss or destruction alone does not automatically mean the testator revoked the will. The proponent must show the will wasn’t intentionally revoked (for example by physical destruction by the decedent or by a subsequent valid will).
• Clear and convincing evidence standard. The court typically requires clear and convincing evidence to admit a lost or destroyed will. That is a stricter standard than a mere preponderance of the evidence.

Typical evidence that helps

• A certified copy or photocopy of the original will kept by the decedent’s attorney or in a safe deposit box.
• Attorney file notes, drafts showing the same terms, and correspondence about the will.
• Testimony from the attesting witnesses (those who signed the will) describing the will’s terms and the circumstances of execution.
• Testimony from third parties who saw the executed original or who can attest the decedent did not revoke the will.
• Mail tracking records or postal service investigation results showing the package was lost or damaged in transit (helps explain why the original isn’t before the court).

How the probate court proceeds

1. The proponent files a petition to admit the will to probate and explains why the original is not available (for example, lost or destroyed in the mail).
2. The proponent submits evidence (copies, witness declarations, attorney records, postal records) and asks the court to admit the will under the court’s rules for lost or destroyed wills.
3. The court reviews the proof. If the court is convinced by clear and convincing evidence that the writing is the decedent’s last will and that it was not revoked, the court may admit the copy or other evidence and order probate as if the original had been produced.
4. Interested persons have an opportunity to contest the petition. If someone contests, the court holds a hearing and resolves credibility and evidentiary issues before ruling.

Practical differences if the original is missing

• Admitting a copy or reconstructing a will usually takes more time and costs more in attorney fees and court time compared with presenting a neat original.
• Creditors and beneficiaries may raise disputes over authenticity or intent, increasing the chance of litigation.
• The court may require additional safeguards such as more extensive notice to interested persons.

For general information about the California Probate Code and probate procedures, see the California Legislative Information site for the Probate Code: https://leginfo.legislature.ca.gov/faces/codes.xhtml?lawCode=PROB and the California Courts’ probate resources at https://www.courts.ca.gov/selfhelp-probate.htm.

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

1. Stop further transmission. If the will was mailed but not received by the court, contact the person or office that mailed it (attorney or sender) to confirm how it was mailed and to freeze any further mailings.
2. Open a Postal Service or carrier claim immediately. If the will was sent by USPS or a private carrier, file a lost/damaged package claim and keep the tracking and claim documentation. That helps explain why the original is not available.
3. Locate copies and supporting records. Ask the drafting attorney for their file copy, request any photocopies the decedent kept, and pull drafts, emails, or other papers that track the document’s contents.
4. Identify and contact witnesses. Track down the attesting witnesses and any other people who saw the original. Get written declarations if possible.
5. File a probate petition promptly if assets require administration. If immediate access to bank accounts or property is needed, ask the court for temporary orders even while you pursue admitting a copy of the will.

When you should contact an attorney

Talk to a California probate attorney if any of these apply:

• The estate has substantial assets or complicated property.
• There is reason to believe someone might claim the will was revoked or forged.
• Attesting witnesses are unavailable, hostile, or deceased.
• You need immediate access to funds or to prevent property loss while probate is pending.

How long does the process take?

Timing varies. Admitting a will where the original is unavailable generally takes longer than a straightforward probate. Expect additional weeks or months for fact collection, witness declarations, postal claims, and potential hearings. If an interested person contests authenticity or revocation, the process can take much longer (sometimes a year or more depending on complexity and litigation).

Helpful Hints

• Keep original wills in a safe, traceable location (attorney trust, safe deposit box, or securely with the decedent’s lawyer) rather than relying on mailing the only original.
• When mailing important estate documents, use tracked, insured delivery and keep receipts and tracking numbers.
• If you are an attorney sending an original will, consider hand-delivery to the court or filing the will in person and obtaining a filed-stamped copy for records.
• Collect multiple kinds of evidence: copies, drafts, attorney notes, witness declarations, and carrier tracking/claim documents. Different types of evidence strengthen the case for admission.
• Act fast after discovering the original is missing. Prompt carrier claims, quick witness outreach, and immediate documentation preserve stronger proof later in court.
• If multiple people might claim different documents are the decedent’s last wishes, get counsel early to reduce conflict and the risk of contested litigation.

For personalized help, consult a California probate attorney who can evaluate your documents, gather the right evidence, and represent you in court if you need to admit a lost or damaged will.