Can I Probate a Copy of a Will in California Without It Being Presumed Revoked?

Short answer: Yes — California law permits a court to admit a copy of a will when the original cannot be located, but you must prove the will was validly executed and that the decedent did not revoke the original. To avoid a court treating the copy as presumptively revoked, gather strong, contemporaneous evidence about the original will, its execution, and the circumstances of its disappearance, then present that evidence with a formal petition to the probate court.

Disclaimer

This information is educational only and is not legal advice. I am not a lawyer. For legal advice about a specific situation, consult a licensed California probate attorney.

How California law treats lost or destroyed wills

California’s Probate Code provides the framework for admitting a will to probate and for what happens when the original is missing. The probate court will consider whether the will copy offered for admission accurately reflects an executed will and whether the decedent revoked the original before death. For the full statute text, see the California Probate Code on the State Legislature website: California Probate Code (PROB).

Key steps to probate a copy and avoid a presumption of revocation

Follow these steps to maximize the chance a court will admit a copy of a will without presuming revocation:

Confirm the original is truly missing or destroyed. Conduct a careful search where the decedent kept important papers (home, safe, lawyer’s file, bank safe deposit box). Document search efforts (who searched, when, and where).
Collect the best available copy of the will. That may be a photocopy, typed copy, scanned PDF, fax, or a handwritten draft. If you have earlier drafts, attorney notes, or an email exchange that shows the will’s text, collect those too.
Obtain witness and attesting evidence. Find the witnesses who saw the decedent sign the original will, or people who saw the original will after signing (attorney, notary, family members). Ask them for signed declarations describing what they saw and when. If the will was holographic (handwritten by the decedent), get testimony about the handwriting and signature.
Gather contemporaneous corroboration. Examples include: attorney file copies or billing entries, drafts, emails or texts discussing the will, bank or beneficiary designations matching the will, or a safe-deposit inventory list showing the will was stored there.
Document the absence of revocation. Courts are concerned the decedent might have revoked the original will (for example, by tearing it up or signing a later will). Collect evidence that the decedent had no intent to revoke: witness testimony, lack of any later valid will, or evidence that the decedent kept the will in a single secure place and it went missing only after death.
File the correct petition and supporting declarations in probate court. You (usually the proposed personal representative or an interested person) must file a petition to admit the copy of the will. Attach the copy, signed declarations from witnesses and other supporting documents, and a statement describing search efforts for the original. The court clerk or the probate court website can identify the necessary forms and local filing rules.
Serve interested persons and follow notice rules. California probate requires notice to heirs, beneficiaries, and other interested persons. Follow statutory notice procedures so the court can proceed.
Prepare to prove the will’s execution and non-revocation at a hearing. The court will hold a hearing on the petition. Be ready to present witness testimony and documentary evidence showing (1) the will copy accurately reflects a validly executed will and (2) the decedent did not revoke the will before death.

What the court looks for — practical evidence that helps

Attesting witness testimony that the decedent signed the original will and that the formalities (signing, witness signatures) occurred.
Attorney file records showing the will’s drafting and execution.
Contemporaneous drafts, emails, or other documents showing the will’s content and the decedent’s intent.
Evidence that the decedent kept the original in a particular place and it disappeared only after death (helps rebut an inference of intentional destruction).
Lack of any later executed will or codicil that would supersede the prior instrument.

Common objections and how to address them

Objection: The original was intentionally revoked. Rebut with evidence showing no intent to revoke — for example, witnesses who saw the original intact after the date a later “revoking” event supposedly occurred, or proof of custody and loss rather than destruction.
Objection: The copy is inaccurate or forged. Use multiple corroborating sources (drafts, attorney emails, witness statements, metadata of electronic files) to verify the copy’s authenticity.
Objection: The copy lacks required formalities. If the original was a witnessed will, the attesting witness testimony that the signing formalities occurred is crucial. If the will was holographic, gather testimony or expert opinion confirming the decedent’s handwriting and signature.

Practical tips for petition drafting and the hearing

Hire a probate attorney if possible — the rules and evidentiary standards can be technical.
Use signed, sworn declarations (not informal notes) from witnesses and the petitioner. Declarations should describe what each declarant saw, dates, and other specific facts.
Bring original corroborating documents to the hearing (or certified copies) and be prepared to explain chain of custody for any electronic files or scans.
Be organized: prepare a clear timeline of events (will drafting, signing, storage, discovery of loss) and attach it to your petition.

After the court admits a copy

If the court admits a copy, it will usually authorize Letters Testamentary or Letters of Administration with Will Annexed so the estate can be administered under that admitted instrument. If a later valid will turns up, the court may revisit the admission depending on circumstances; keep the court informed if the original appears.

Where to find forms and statutes

California Probate Code and related statutes: https://leginfo.legislature.ca.gov/faces/codes.xhtml?lawCode=PROB
California Courts — self-help pages on probate and admitting wills: https://www.courts.ca.gov/selfhelp-probate.htm
Judicial Council probate forms and local rules: https://www.courts.ca.gov/forms.htm?filter=probate

Helpful hints

Start documentation immediately: contemporaneous records help most.
Locate and preserve any attorney files or drafts as early evidence.
Get written, signed declarations from witnesses rather than only oral recollections.
If a safe-deposit box might contain the original, determine whether a court order is required to open it; don’t open it informally.
If the will is holographic, preserve any other handwriting samples from the decedent to help authenticate handwriting.
Consider an attorney if relatives contest the admission — contested probate matters can become complicated and adversarial.

If you want, tell me more about your situation (who found the copy, whether there are attesting witnesses or an attorney who drafted the will, and whether any later wills exist) and I can outline the likely documents and evidence you should prepare for the petition.