Detailed Answer — What happens if a will is lost or destroyed under Colorado law?
When someone’s original will cannot be found or is physically destroyed, Colorado law focuses on two central questions:
- Did the testator (the person who made the will) revoke the will by a deliberate act or clear intent? and
- Can the terms of the missing or destroyed will be proved by clear and convincing evidence so a court can admit it to probate?
Colorado courts will presume that a will that was last known to be in the testator’s possession and then cannot be found was revoked by the testator’s deliberate act (for example, tearing, burning, or other destruction). That presumption shifts the burden to the person who wants the will admitted (the proponent) to overcome the presumption by producing convincing evidence the testator did not intend to revoke the will.
If the will is lost or destroyed due to accident or by someone else (no proof the testator intended revocation), a court may admit evidence of the will’s terms. To admit a lost or destroyed will, the proponent typically must prove the contents of the will and show by clear and convincing evidence that the document existed in the form claimed and was not revoked by the testator.
Evidence the court may consider includes:
- Copies of the will (word-for-word photocopies, typed drafts, or email attachments);
- Testimony or affidavits from attesting witnesses who signed the will and recall the terms or circumstances of execution;
- Testimony from third parties who saw the original will, drafts, or discussed its terms with the testator;
- Self-proving affidavits or notarizations if a copy has such evidence; and
- Contemporaneous records that corroborate the will’s provisions (financial records, beneficiary designations, correspondence).
If the proponent proves the will’s contents and rebuts revocation, the court may admit the will to probate and distribute assets according to its terms. If the proponent cannot meet the required proof, the estate may be administered under Colorado’s intestacy rules (as if there were no valid will).
Typical court steps and filings
- File a petition with the probate court asking to admit the lost or destroyed will. The Colorado Judicial Branch maintains probate forms and filing instructions at the state court website: Colorado Judicial Branch — Probate Forms.
- Attach or provide copies and affidavits supporting the will’s terms and explaining how the original was lost or destroyed.
- Notify interested persons (heirs, beneficiaries) and allow them time to object.
- If objected to, the court will hold a hearing where witnesses and evidence determine whether the will can be admitted.
Hypothetical examples
Example 1 — Proponent wins: A decedent’s attorney has a photocopy of the will. Two attesting witnesses swear the photocopy accurately reflects the original they signed. The original could not be located, but no evidence shows the decedent destroyed it with intent to revoke. The probate court admits the will based on clear and convincing evidence.
Example 2 — Presumption of revocation stands: A decedent kept the original will in a desk drawer. After death, the original cannot be found and no witnesses can explain its disappearance. The court may find the missing original was intentionally destroyed by the testator and decline to admit a copy. The estate would then be distributed under intestate rules.
What the law requires you to prove
Colorado requires more than a mere balance of probabilities when a will is lost or destroyed and revocation is in question. Courts generally require clear and convincing evidence to reconstruct or admit a missing will. This is a higher standard than typical civil cases. When the decedent’s act of destruction is shown or reasonably inferred, the proponent must provide persuasive evidence the decedent did not intend to revoke.
For statutory text and context about probate procedures, you can consult the Colorado General Assembly’s website for the Probate Title and related statutes at leg.colorado.gov. For forms and local filing rules, use the Colorado Judicial Branch probate forms page linked above.
Helpful Hints
- Act quickly: locate any copies (paper or digital) and secure them.
- Preserve evidence: do not alter any documents or destroy related records. If paper was burned or torn, photograph the remains and preserve them.
- Contact the attesting witnesses: their testimony or sworn affidavits can be decisive.
- Collect contemporaneous evidence: drafts, emails, estate planning notes, or communications with the testator can help reconstruct intent and terms.
- File the proper petition with the probate court and notify heirs. Use the court’s probate forms page: Colorado probate forms.
- Consider a probate or estate attorney: admission of a lost or destroyed will often involves contested hearings and a high proof standard; an attorney can help build the required evidence and represent your interests.
- If the will is intentionally destroyed by a third party after the testator’s death, preserve evidence of that act and report it to the court promptly.
- If you are a named executor whose original will is missing, do not assume intestacy. File a petition to admit the copy and gather witnesses and proof.
Disclaimer: This article explains general Colorado probate principles and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Colorado probate attorney.