Detailed Answer

Short answer: In California, a lost or destroyed will can still be admitted to probate, but the person who wants the will probated must prove (1) the will was validly executed, (2) the will’s contents, and (3) that the will was not revoked by the testator. If the will was physically mutilated or a signed original is missing, the court presumes revocation by a physical act, but that presumption can be rebutted with sufficient evidence.

How California law treats lost or destroyed wills

California’s Probate Code sets the rules for wills, including what happens when a will cannot be found or is damaged. The law treats two related situations differently:

Will physically destroyed or mutilated: If a will is found torn, burned, or otherwise mutilated, California law treats that condition as evidence the testator intended to revoke the will by physical act. That presumption is rebuttable — other evidence can show the testator did not intend revocation. See California Probate Code §6122: Cal. Prob. Code §6122.
Signed original lost or missing: If the signed original cannot be located (for example, lost, stolen, or destroyed without clear evidence of intent), California allows admission of secondary evidence—such as an exact copy or testimony describing the will—if the proponent proves the will’s contents and that it was validly executed and not revoked.

Burden and standard of proof

The person asking the court to admit a lost or destroyed will (the proponent) bears the burden of proof. The proponent must produce clear and convincing evidence that:

The will was properly executed (signed and witnessed as required under California law). See California Probate Code §6110 for execution rules: Cal. Prob. Code §6110.
The content of the will is as the proponent claims — this often requires a reliable copy, the testimony of a subscribing witness, or other admissible secondary evidence.
The will was not revoked by the testator (for example, by a later valid will, a written revocation, or an intentional physical act).

The court will weigh all the evidence (copies, witness testimony, circumstances of loss, testimony about the decedent’s intent, and any drafts or communications). If the court finds the proponent’s proof persuasive, it can admit the lost or destroyed will to probate and direct distribution under its terms. If not, the estate may be distributed under intestate rules (California Probate Code §6400 et seq.).

Types of evidence that help

Original or certified copy of the will (if available).
Clear copies of the signed will, including photocopies or scanned images.
Testimony from the subscribing witnesses who saw the testator sign the will.
Testimony from the testator’s attorney or anyone who saw or kept the original will or managed the safe deposit box.
Contemporaneous drafts, emails, or notes that match the will’s terms.
Evidence explaining how the will was lost, damaged, or destroyed (e.g., theft report, evidence of a fire, a missing safe deposit box key).

What to do immediately if the will is lost or destroyed

Search known locations: safe deposit boxes, attorney’s office, home, bank vaults, secure digital storage.
Contact the attorney who drafted the will — they often keep originals or copies.
Notify potential beneficiaries and heirs so they know a probate petition may be filed.
Preserve copies and gather any documents, emails, or witnesses that can identify the will’s contents.
Consider filing a petition for probate as soon as practicable — delay can make proof harder and increase disputes.

Possible outcomes in probate court

Court admits the will: If the proponent proves validity and contents, the court admits the will and distributes the estate under its terms.
Court finds revocation occurred: If the court concludes the testator revoked the will (for example, by intentionally tearing it), the will is denied probate and the estate follows a later valid will or intestacy rules.
Partial admission or modification: The court may resolve disputes about specific provisions if evidence supports some clauses but not others.

Practical note: Admitting a lost or destroyed will often requires more time and evidence than admitting a readily available original. Expect more hearings, witness testimony, and possibly contested litigation.

Where to file and procedural steps

Petitions to admit a will and open probate are filed in the county superior court where the decedent lived. The proponent will file a petition to admit the will and request letters (e.g., letters testamentary). The court will set a hearing and require notice to heirs and interested parties. Each county has local rules and forms; courts typically provide probate packet forms and instructions.

When to contact an attorney

Because lost/destroyed-will cases often involve heightened risk of disputes and complex evidentiary requirements, many people hire an attorney experienced in California probate to prepare the petition, collect evidence, and represent them at hearings. An attorney can also help protect estate assets during the process.

Disclaimer: This article is for general information only and does not constitute legal advice. It is not a substitute for consulting a licensed attorney about your specific situation.

Helpful Hints

Act quickly: the longer you wait, the harder it is to locate evidence and witnesses.
Gather everything: copies, drafts, emails, filing cabinet notes, safe-deposit box records, and communications with the will drafter can be crucial.
Talk to the drafter: attorneys or paralegals who prepared the will often keep copies and can testify about execution.
Identify and contact subscribing witnesses early — their testimony is often decisive.
Document the loss: write down when and how the will was discovered missing or damaged; create a timeline of events.
Be prepared for contested proceedings: heirs with competing interests may challenge the petition.
Review state statutes: California Probate Code sections governing wills and revocation provide the legal framework; see Cal. Prob. Code §6110 (execution rules) and §6122 (revocation by physical act): Cal. Prob. Code §6110, Cal. Prob. Code §6122.
Consider mediation if parties contest the outcome — it can save time and money compared with full litigation.