What to do when the original will is lost or damaged in transit to the courthouse

Disclaimer: This is educational information only and is not legal advice. Consult a licensed Colorado probate attorney to apply these ideas to your situation.

Detailed answer — how Colorado handles an original will that goes missing or is damaged in transit

If the original will disappears or is damaged while being mailed or otherwise delivered to a Colorado courthouse or clerk, the loss does not automatically prevent probate. Colorado probate courts expect an original will whenever possible, but they also have procedures for admitting a will when the original cannot be produced. The main issues are:

Was the document ever a valid, properly executed will?
Has the original been lost, destroyed, or is it simply misfiled?
Can the person seeking probate prove the contents and authenticity of the will despite the original not being available?

Practical steps the court commonly requires (or that a petitioner should prepare for) include:

Search and documentary evidence: Show reasonable efforts to locate the original (search the testator’s home, safe deposit box, attorney’s office, and any other likely places). Provide proof of mailing/receipt if available (tracking, certified-mail receipts, or postal claims).
File a petition for probate of a lost or destroyed will: If the original cannot be found, file the standard petition for probate in the county where the decedent lived and include a request that the court admit a copy (or a reconstructed will) because the original is lost or was destroyed without the testator’s intent to revoke it.
Offer evidence of due execution and contents: You (or the decedent’s attorney) must present evidence that the document was properly executed as a will and what its terms were. Typical evidence includes witness affidavits or testimony, copies of the will (paper or electronic), drafts showing the same language, or testimony from the attorney who prepared it.
Address possible revocation concerns: Colorado courts will carefully consider whether the original was intentionally destroyed by the testator (which can revoke the will). If the original was lost in transit and not destroyed by the testator, explain the circumstances and offer supporting evidence.
Hearing and objections: Expect the court to schedule a hearing where interested parties can object. Be prepared to present witnesses and documentary proof. The court will decide whether to admit the copy or substitute document as the decedent’s last will.

Colorado law and court practice prioritize proof of the testator’s intent and the authenticity of the document. For general statutory background on probate rules in Colorado, see Title 15 — Probate on the Colorado General Assembly website: https://leg.colorado.gov/content/title-15-probate. For practical filing information and local forms, see the Colorado Judicial Branch probate pages: https://www.courts.state.co.us/Self_Help/Probate/Probate.cfm.

Who bears the burden of proof?

The petitioner seeking admission of a copy typically bears the burden to prove the will’s execution and contents. That proof can take the form of testimony from witnesses who saw the will signed, affidavits from the drafting attorney, or contemporaneous drafts and copies that match the missing original. If the court is satisfied, it may admit a copy or reconstructed will to probate.

Other practical remedies if the will was lost or damaged in the mail

Contact the courthouse immediately. If the clerk received a damaged envelope or returned mail, the clerk’s office may have a record or policy that helps document the loss.
File a postal claim or insurance claim if the will was mailed via the U.S. Postal Service or a carrier (retain tracking numbers or certified-mail receipts). See the USPS claims page for filing instructions: https://www.usps.com/help/claims.htm.
Get sworn statements from the person who mailed the document and any postal employees or courthouse staff who handled it.
Locate and submit copies: If an attorney or copier has a duplicate, or if the decedent kept a digital copy, collect those documents and be prepared to explain their origin and chain of custody.

How Colorado courts treat a missing original vs. a destroyed will

There is an important legal difference between a will that is lost or misplaced and a will that was destroyed by the testator. If the testator intentionally destroyed or canceled the original with the intent to revoke the will, that generally revokes the will. If the original is missing because of mailing or handling and there is evidence the testator did not intend revocation, courts will consider admitting a copy after hearing evidence that the copy accurately reflects the decedent’s last wishes.

Because these facts can be contested by beneficiaries or heirs, expect potential litigation and the need for clear documentary and testimonial proof.

Helpful Hints

Act quickly: Immediately begin a thorough search for the original and preserve any mailing evidence (tracking numbers, receipts, photos of the mailed envelope).
Collect copies: Gather all drafts, photocopies, digital files, or attorney’s copies of the will. Photocopies and electronic copies can be strong supporting evidence when presented with other proof.
Get affidavits from witnesses: Obtain sworn statements from the will’s witnesses, the preparing attorney, and the person who mailed the document describing what they saw and did.
Document chain of custody: Keep records showing who handled the will, when it was mailed, and any delivery attempts or courthouse receipts.
Use certified or tracked delivery next time: When sending an original will, use tracked, insured, or clerk‑approved delivery methods and keep receipts.
Talk to a probate attorney early: An attorney experienced in Colorado probate can file the correct petition, prepare witness affidavits, and present the strongest evidence to the court.
Prepare for opposition: Heirs or beneficiaries may contest admission; be ready with corroborating evidence and credible witnesses.

For Colorado-specific filing rules and forms, consult the Colorado Judicial Branch probate pages: https://www.courts.state.co.us/Self_Help/Probate/Probate.cfm, and review Title 15 — Probate at the Colorado General Assembly: https://leg.colorado.gov/content/title-15-probate.

Final note: Every case is different. If an original will went missing or was damaged in transit, speaking with a Colorado probate attorney will help you understand the likely outcome and the best evidence to present to the court.