Probating a Copy of a Will in Georgia: How to Avoid a Presumption of Revocation

Disclaimer: This article is for educational purposes only and does not constitute legal advice. Laws change and every case is different — consult a Georgia probate attorney about your specific situation.

Short answer

Under Georgia practice, if the original will cannot be located after a decedent’s death, the court will often start with a presumption that the will was revoked if the original was last in the decedent’s possession and later cannot be found. To admit a copy instead of the original, you must present evidence that rebuts that presumption and proves (1) the copy accurately reflects the decedent’s last will and (2) the decedent did not revoke the original intentionally. That generally requires sworn testimony or affidavits (often from attesting witnesses), documentary evidence, and a formal petition to the probate (superior) court where the decedent lived.

Why the original matters and when a presumption arises

Courts prefer originals because an original signed document provides the best evidence of the testator’s intent and that the will was properly executed. Georgia courts (like courts in many states) commonly apply a rebuttable presumption of revocation when the original will was last known to be in the decedent’s possession and cannot be found after death. The presumption reflects that a testator has the power to destroy a will; an unlocated original raises the question whether the testator destroyed it to revoke it.

How to probate a copy without it being presumed revoked — step by step

Make a thorough search first. Exhaust reasonable means to find the original: check safe-deposit boxes, home safes, attorney or bank files, personal papers, and any place the decedent kept important documents. Document your search steps in writing and preserve any communications about the will.
Confirm there is no subsequently executed will. Interview family, friends, caregivers, and the decedent’s lawyer(s). If a later valid will exists, it controls. If no later will is found, note that in your petition and affidavits.
Gather evidence showing the copy is genuine and the original wasn’t revoked. Useful evidence includes:
- Affidavits from the attesting witnesses (people who signed the original will) describing the execution ceremony and confirming the copy matches their recollection.
- An affidavit or testimony from the person who kept the paper copy (e.g., the lawyer, secretary, or family member) about how and when they received and stored it.
- Affidavits from close family or friends stating the decedent never expressed intent to revoke the will and describing the decedent’s state of mind around the relevant time.
- Handwriting or forensic evidence if the copy contains the decedent’s signature and there is any dispute over authenticity.
File a petition in the appropriate Georgia court. In Georgia, probate and estate administration matters are handled by the Superior Court of the county where the decedent resided. Your petition should ask the court to admit the copy to probate as the decedent’s last will and should attach the copy and supporting affidavits/evidence. The petition should explain the search for the original and the reasons it cannot be produced.
Provide notice and follow procedural requirements. Serve required notices to interested persons (heirs, beneficiaries, creditors) and follow local Superior Court rules for probate petitions. The court may set a hearing date.
Be prepared for a hearing and possible contest. At the hearing the judge will weigh the evidence. The person seeking probate must rebut the presumption of revocation by showing it is more likely than not that the original was not revoked and that the copy accurately reflects the testator’s testamentary intent. If creditors or heirs contest, the court will evaluate credibility and evidence and rule accordingly.
If the presumption cannot be adequately rebutted, be ready for alternatives. If the court concludes the will was revoked or that the copy cannot be reliably proved, the estate may be administered as intestate (under Georgia laws of intestacy). In some cases the court may admit portions of the document or allow relief under equitable grounds, but outcomes vary by fact pattern.

Practical evidence that helps rebut the presumption

Affidavits from the original attesting witnesses confirming due execution and that the copy matches their memory.
Documented history showing the original was lost after the testator’s death (for example, if the will was left in a place accessible only after death and went missing afterward).
Testimony showing the decedent lacked motive or intent to revoke (e.g., continued statements about the will, behavior inconsistent with revocation).
Evidence that the testator did not have access to the original at the time it disappeared (such as a will held by an attorney or in a safe-deposit box the decedent was unable to access).
Forensic or handwriting analysis when signatures or alterations are in dispute.

Common pitfalls to avoid

Do not rely on a casual, undocumented search. Courts expect documented efforts to find an original.
A single unsupported memory is often insufficient. Affidavits should be specific and credible.
Failing to give required notice or to follow local court rules can delay or derail probate.
Assuming a photocopy is automatically admissible. A copy can be admitted, but it usually requires convincing proof.

When to get a lawyer

If the will’s authenticity or revocation is contested, if attesting witnesses are unavailable or deceased, or if heirs dispute the matter, you should consult a Georgia probate attorney. An attorney can prepare the petition, assemble affidavits, represent you at hearings, and advise on alternatives (like estate administration without a will) if the copy cannot be admitted.

Helpful hints

Start the search immediately after death and keep a written log of where you looked and who you contacted.
Collect and preserve all electronic records or communications that reference the will (emails, text messages, notes from meetings with the lawyer).
Ask the decedent’s attorney (if any) for files and a statement about whether they have the original.
If attesting witnesses are elderly or ill, get sworn affidavits as soon as possible while memories are fresh.
Bring originals of any related documents (trust agreements, prior wills, codicils) to the initial consultation with an attorney or to the court.
Be transparent with potential heirs and beneficiaries about the petition to reduce surprise and the risk of contested proceedings.

Bottom line

Probating a copy of a will in Georgia is possible, but it requires careful evidence to overcome the presumption that a missing original was revoked. Thorough searches, clear affidavits (especially from attesting witnesses), documented proof of authenticity, and compliance with Superior Court procedures are essential. Because fact patterns and local practice vary, talk to a Georgia probate attorney promptly to assess your chances and prepare the strongest possible petition.