What Happens if a Will Is Lost or Destroyed in Georgia (GA)?

Detailed Answer — What happens if a will is lost or destroyed under Georgia law?

Under Georgia law, a will that cannot be located or that has been destroyed can still be probated (given legal effect) in certain circumstances, but the outcome depends on who destroyed the document and why. The probate court’s job is to determine whether the document truly reflected the testator’s (the person who made the will) final wishes.

Key legal principles

• Presumption of revocation by the testator: If the testator intentionally destroyed the original will (for example, by tearing it up or burning it) with the intent to revoke it, Georgia treats the act as a valid revocation. The burden then falls on anyone seeking to enforce the will to overcome that presumption with clear evidence the testator did not intend revocation.
• Lost or destroyed by someone else: If the will was lost, misplaced, or destroyed by a third party (for example, a fire or a third party who did not act at the testator’s direction), Georgia courts are generally willing to admit evidence of the will’s terms and probate a copy if a proponent proves the will’s contents and the due execution.
• Admitting a copy: If the original cannot be produced, a copy or other evidence of the will’s terms (a photocopy, draft, electronic copy, or witness testimony) may be brought to court. The person seeking probate must show the content of the will and that it was validly executed.

These rules are implemented through Georgia probate procedures found in the Official Code of Georgia Annotated (OCGA), Title 53 on property and wills. See OCGA Title 53 (Wills and testate succession) for the statutory framework: https://www.legis.ga.gov/statutes/ocga/53. Also consult local probate court rules at the Georgia Judicial Branch: https://georgiacourts.gov/.

Typical court process when a will is lost or destroyed

1. Search and verify: Before filing, do a thorough search (safe deposit boxes, attorney files, home, bank, storage). If a will is found after you start a proceeding, tell the court immediately.
2. File a probate petition: File a petition in the probate court of the county where the decedent lived asking the court to admit the will to probate as a lost or destroyed instrument. The petition should explain circumstances of loss/destruction and provide any supporting evidence.
3. Provide evidence of the will’s contents and execution: Submit a copy of the will (if available), witness testimony (attesting to the will’s signing and contents), contemporaneous drafts, electronic copies, and any self-proving affidavit if one exists. If the will was self-proved (a notarized attestation), that affidavit can be powerful evidence even if the original is missing.
4. Burden of proof: The person seeking to probate a lost or destroyed will must persuade the court—often by clear and convincing evidence—that (a) the will was validly executed, (b) the contents offered to the court are the actual contents, and (c) the will was not revoked by the testator. Interested parties (heirs or beneficiaries) may oppose admission and offer contrary evidence (for example, proof the testator intentionally revoked the will).
5. Court hearing and ruling: The probate court will hold a hearing, evaluate testimony and documents, and either admit a copy or other evidence to probate or decline admission if the evidence is insufficient or the court finds revocation occurred.

What if the testator intentionally destroyed the will?

If evidence shows the testator destroyed or tore up the will with the intent to revoke it, the will is typically considered revoked. However, that presumption can be rebutted. For example, if the destruction was part of updating the estate plan and the testator later executed a new will (or executed a document that clearly showed they did not intend to revoke the prior will), the court will consider that evidence.

Practical consequences

• If a copy is admitted, the estate normally will be distributed according to the probate copy’s terms (subject to any successful objections).
• If the court finds the will revoked and there is no valid later will, the estate will pass under Georgia’s intestacy rules (OCGA Title 53), which distribute property to surviving spouse, children, parents, etc.
• If a contested fact is central (for example, whether the testator actually intended revocation), litigation can be lengthy and costly; evidence such as witness testimony, contemporaneous notes, and communications may be decisive.

For statutory context, start with OCGA Title 53 on wills and the provisions governing probate procedure: https://www.legis.ga.gov/statutes/ocga/53.

Helpful Hints

• Do a thorough, documented search before filing: check the decedent’s home, attorney or bank files, safety deposit boxes, and computers or cloud storage for scanned copies.
• Locate witnesses fast: Track down the original witnesses to the will’s signing. Their affidavits or testimony can be decisive.
• Collect copies and drafts: Photocopies, scanned files, emails referencing the will, or drafts help establish contents and authenticity.
• Get a probate attorney: Lost-will cases can hinge on procedural details and evidence rules. A Georgia probate attorney can prepare the petition and present evidence effectively in court.
• Preserve communications and physical evidence: Don’t discard related documents, emails, or notes. Keep devices and storage intact; metadata can help prove timing and authenticity.
• Act quickly: Probate deadlines and statute of limitations for certain challenges can apply. Immediate action reduces the risk of evidence loss and strengthens your case.
• If you believe the testator revoked the will, gather proof of the testator’s intent (letters, contemporaneous statements, or a later valid will).
• Consider executing a new will: If you are the testator and your original will was lost or destroyed unintentionally, quickly execute a new will following Georgia formalities to avoid uncertainty.

Disclaimer: This article explains general principles of Georgia law and is for educational purposes only. It is not legal advice. Laws change and outcomes depend on the specific facts of a case. Consult a licensed Georgia probate attorney to get advice tailored to your situation.