Disclaimer: This is educational information only and not legal advice. I am not a lawyer. For guidance about a specific situation, consult a licensed Florida probate attorney.
Detailed Answer
When the original signed will cannot be located because it was lost or damaged in transit to the clerk’s office, Florida law allows the probate court to admit a copy of the will in many circumstances, but the process takes extra proof and may be contested.
Key legal principles that apply in Florida:
- Original required for routine probate: Courts prefer to see the original, signed document before admitting a will to probate.
- Admitting a copy when the original is missing: If the original is not available, a judge can still admit a will if the petitioner proves the writing’s execution and contents by satisfactory proof. Florida’s statutes and probate practice govern how to present that proof—review Chapter 732 of the Florida Statutes for the statutory framework: Florida Statutes, Chapter 732.
- Standard of proof: Courts generally require convincing evidence (often described as clear and convincing or comparable satisfactory proof) that the copy accurately reflects a properly executed will and that the original has not been intentionally revoked.
- Presumption about loss while in possession: If a will was last in the decedent’s possession and cannot be found after death, some courts raise a presumption of revocation by destruction. That presumption can be rebutted with evidence that the testator did not revoke the will and that the original was lost or destroyed accidentally (for example, lost in the mail).
Practical examples of the kind of evidence the court will want:
- A clear, complete copy of the will (typed or photocopied) that matches any drafts or versions known to exist.
- Affidavits (sworn statements) from the witnesses who signed the will confirming they witnessed the testator sign and describing the original will’s contents.
- The attorney’s file notes or electronic version of the will showing execution and delivery steps.
- Mailing and delivery records: certified-mail receipts, carrier tracking showing the package was posted, delivery attempts, or proof that the clerk’s office received or logged the package (if applicable).
- Affidavits from the person who mailed the will or from postal/courier employees if they can testify about the loss or damage in transit.
Typical steps a personal representative or interested person should take after discovering the original is missing or damaged in transit:
- Stop and preserve all evidence: keep the damaged envelope or package, any photos of damage, the mailing receipt, tracking number, and any emails or communications about the mailing.
- Check with the clerk’s office to confirm whether the package was received or misfiled. Clerks sometimes log wills when filed; a misfiling could solve the problem quickly.
- Obtain postal or courier records and file a claim with the carrier for loss or damage.
- Get affidavits from witnesses, the attorney who prepared the will, and the person who mailed it. Witness testimony is often vital to prove the will’s validity and contents.
- Consult a Florida probate attorney and, if advised, file a petition asking the probate court to admit a copy of the will to probate. The petition should present the evidence listed above and explain why the original cannot be produced.
- Anticipate objections: relatives or other interested parties may object to admitting a copy, especially if they would benefit from an intestate distribution. Be prepared to meet the court’s evidence standards.
If damage occurred in the mail but the original is merely torn or partially unreadable, the court may still admit the damaged original if signatures and material provisions are legible and witnesses can confirm authenticity. If the original is entirely destroyed or permanently missing, admission of a copy will depend on the strength of the supporting proof.
Because probate procedures and evidentiary standards can be technical and time-sensitive, seeking counsel early improves the chance of a smooth resolution.
Where to look in Florida law
Material on wills, admission to probate, and related matters appears in the Florida Statutes governing wills and estates. See Chapter 732 (Wills) for statutory provisions and consult local probate rules and court decisions for how courts interpret proof and admission of lost or destroyed wills: https://www.leg.state.fl.us/statutes/ (Chapter 732).
Helpful Hints
- Immediately preserve any physical evidence: damaged envelopes, tracking receipts, photos of damage, and any packaging material.
- Collect contemporaneous records: attorney emails, electronic copies, drafts, and witness contact information.
- Request the carrier’s incident report and delivery tracking history as soon as possible; those records are often time-limited.
- Ask the clerk’s office to search their incoming mail log and provide a written record of what they received.
- Obtain sworn affidavits from the will witnesses and the person who mailed the will; those carry significant weight in court.
- Do not destroy or alter any copies or evidence. Keep everything in a secure place and provide copies to your attorney.
- Expect possible challenges. Be prepared to demonstrate why the original cannot be produced and why the copy is authentic.
- Act quickly. Evidence, witness memories, and carrier records fade or disappear over time.
If you need help preparing affidavits, gathering records, or filing the appropriate petition, contact a licensed Florida probate attorney. An attorney can advise on what specific proof your county probate court typically requires and represent you if the will admission is contested.