What Happens if a Will Is Lost or Destroyed in Delaware?

Detailed Answer

This section explains what typically happens when a last will and testament cannot be found after the testator (the person who made the will) dies under Delaware law. If a will is lost or appears destroyed, the probate court must decide whether the testator revoked the will before death, or whether the will remains valid but cannot be located. The primary issues are: (1) whether the document was intentionally revoked by the testator, and (2) whether the court can establish the wills contents and validity from other evidence.

Under Delaware law, the rules that govern wills and probate appear in Title 12 of the Delaware Code (Decedents Estates). For background and statutory text, see Delaware Code, Title 12: https://delcode.delaware.gov/title12/.

Two common scenarios

• Presumed revocation by physical act: If the original will is not found among the testators papers after death and there is evidence the testator once had the will in their possession, Delaware courts may presume the testator destroyed the will with the intent to revoke it. The presumption is rebuttable — family members or beneficiaries can present evidence showing the testator did not intend revocation.
• Lost or destroyed but not revoked: If the will cannot be located but there is a reliable copy (a photocopy, digital copy, or detailed witness testimony about its contents), a court may nevertheless admit the copy or allow proof of the wills contents so long as the evidence establishes the wills existence, terms, and validity.

How courts resolve the issue

The probate court will weigh the available evidence. Common forms of evidence include:

• Testimony from the wills drafter, witnesses who saw the original will, or people who knew the testators intentions;
• Copies of the will (printed or electronic) and any drafts showing the same terms;
• Documents showing the testator retained or destroyed the will (correspondence, notes, or witnesses who observed the testator handle the document); and
• Evidence about the testators state of mind and capacity.

If the court is satisfied by the evidence that the testator did not revoke the will and that the copy reliably reflects the testators final intentions, it may admit the copy or allow extrinsic proof of the wills terms. If the court concludes the testator revoked the will or cannot be convinced of the wills validity, the estate may be distributed under an earlier valid will (if one exists) or under Delawares intestacy rules in Title 12.

Practical legal effects

• If a lost will is proved and admitted, the estate follows the admitted wills directions.
• If the court finds revocation or cannot admit the will, beneficiaries named only in the missing will may lose their gifts. Assets pass under a prior will or by intestacy (statutory distribution) under Title 12.
• Admitting a copy or allowing proof of a lost will often takes more time and may increase estate legal costs because parties may contest the proof.

Relevant statute reference

Delaware law governing wills and wills probate procedure appears in Title 12 of the Delaware Code (Decedents Estates). For the statutory framework and specific provisions that apply to wills and probate procedures, consult: https://delcode.delaware.gov/title12/.

Hypothetical example

Fact pattern: Jane Doe, a Delaware resident, made a signed will in 2018 and kept a paper copy in a locked drawer. After her death, loved ones cannot find the original; they find only a photocopy saved in her email and two witnesses who recall signing the 2018 will. A sibling claims Jane destroyed the original the month before she died.

How a Delaware probate court might handle this: The court would examine the available evidence: the photocopy, witness testimony about the original signing, testimony about whether Jane intended to revoke the will, and any evidence of destruction. If the court finds the evidence shows Jane did not intend revocation and the photocopy accurately states her final wishes, the court could admit the copy or allow proof of the lost wills terms. If the court finds she intentionally destroyed the will to revoke it, the will would not be effective and the estate would pass under an earlier will or by intestacy.

Steps to take if you discover a will is lost or destroyed

1. Search thoroughly: check safes, bank safe-deposit boxes, attorney or accountant files, email accounts, cloud storage, and with the drafting attorney.
2. Collect copies and related documents: preserve any photocopies, scanned files, emails, drafts, or related estate planning documents.
3. Identify and preserve witnesses: locate people who saw the original will, witnessed its signing, or discussed the testators intentions with the testator.
4. Notify the probate court early: file a notice of death and explain the missing original so the court can guide next steps (some courts have specific procedures for proving lost wills).
5. Consult a Delaware probate attorney promptly: an attorney can help gather admissible evidence and file the right petitions to admit a copy or to rebut a presumption of revocation.

Consequences if you cannot prove the will

If you cannot establish the wills validity or locate a valid earlier will, Delawares intestacy rules in Title 12 will determine who inherits. That can produce results different from the decedents latest expressed wishes, which is why timely evidence and legal help matter.

Helpful Hints

• Immediately preserve any copy (digital or paper) and collect metadata (dates, file locations, email headers) — courts consider such details.
• Get written affidavits from anyone who witnessed the will or who can testify about the testators statements regarding the will.
• Contact the attorney who drafted the will; attorneys often keep original wills or client copies and can provide critical evidence.
• Dont assume a missing original automatically means revocation. A missing will creates a legal issue that the court must resolve, not an automatic outcome.
• Expect longer probate and potentially higher costs when a will is missing; contested matters increase time and expense.
• Plan ahead: store the original will in a secure, known location and tell a trusted person where it is or register it with a safe-deposit or wills registry if available.

Disclaimer: This article explains general Delaware probate concepts and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Delaware attorney who practices probate and estate law.