Detailed answer — filing a will when the original is not produced (Idaho)

Idaho treats the original will as the primary evidence of a decedent’s testamentary intent. Courts prefer to admit the original will to probate. But if the original is withheld, lost, or destroyed, Idaho probate procedure still allows a will to be offered and, in many cases, admitted using secondary evidence or by asking the court to order production.

Step 1 — Confirm the proper venue and basic requirements

Start in the probate court of the county where your father lived when he died. You (or another interested person) must file a petition to admit the will to probate and to appoint a personal representative. The petition needs basic documents: a certified copy of the death certificate and whatever copy of the will you have.

Step 2 — Ask the holder to produce the original

Before filing, make a written, dated request to your step-sister asking her to deliver the original to the probate court or to you. Keep a copy of the request and any communication. If she continues to refuse, the court can be asked to order production.

Step 3 — File a petition to probate and include facts about the missing original

File a verified petition for probate that explains where the original will is believed to be (for example, in your step-sister’s possession) and that she refuses to produce it. Attach the best available copy of the will as an exhibit. The petition should ask the court to take appropriate steps: (a) require production of the original; (b) if the original cannot be produced, admit the copy as a copy of the decedent’s last will under applicable rules and law.

Step 4 — Use subpoenas and court orders to obtain the original

The court can issue a subpoena ordering the holder to bring the original will to a hearing. If the person still refuses, the court can hold the person in contempt or impose sanctions. A petition asking for an order to compel production is a common next step.

Step 5 — Ask the court to admit a copy if the original cannot be produced

If the original remains unavailable, Idaho courts can admit a copy or other secondary evidence of the will’s contents, but you must prove three core facts at a hearing:

• The instrument offered is in fact the decedent’s will (or a true copy of it).
• The will was properly executed when signed (testamentary formalities).
• The decedent did not revoke the will before death.

To establish these facts, the court will rely on testimony from attesting witnesses (if available), affidavits, other documentary evidence (drafts or correspondence), and credible testimony about who last had the original and what happened to it. If the will was last known to be in your step-sister’s possession and she refuses to provide it, the court may infer she is withholding it and may admit the copy if you meet the evidentiary burden.

Step 6 — Consider civil remedies if the holder is acting in bad faith

If the holder purposely hides or destroys the original will to defeat probate, you may have a separate civil claim (for conversion or similar remedies) or grounds to ask the court for sanctions or contempt. The probate court has broad equitable powers to protect the decedent’s testamentary intent.

What evidence the court will want

• Copy of the will you have (typed or photocopy), clearly labeled as an exhibit.
• Affidavits or testimony from witnesses who saw the will signed or knew of the testator’s intent.
• Evidence showing who had the original last (correspondence, witness statements, or admissions).
• Certified death certificate and an heir/beneficiary list.
• Any drafts, notes, or other documents that corroborate the will’s contents.

Relevant Idaho law and where to look

Idaho’s probate and decedents’ estates law is found in Idaho Code Title 15. That Title includes the statutes governing probate procedure, the admission of wills, and the duties of personal representatives. You can review the provisions and local probate rules at the Idaho Legislature website: Idaho Code Title 15 — Probate and Decedents’ Estates. For court-specific forms and clerk procedures, check the local county probate clerk or the Idaho courts website.

When to hire a lawyer

Hire an Idaho probate attorney if:

• The holder refuses to cooperate after formal demands.
• Key witnesses are unavailable or hostile.
• There are allegations the original was destroyed or altered.
• Large or complex estate assets require secure handling.

An attorney can draft the petition, present affidavits, subpoena witnesses, and argue admission of secondary evidence at a hearing.

Typical timeline and costs

Probate timing varies. If the original is produced quickly, the probate process may proceed in a few months. If you must litigate production or admit a copy, expect additional hearings and more time (several months to over a year), depending on contested issues. Costs include filing fees, service and subpoena fees, and attorney fees where retained.

Key takeaway

If someone refuses to give you the original will, do not delay. Make a written demand, gather all evidence and copies, then file a verified petition in the probate court where your father lived asking either that the original be produced or that the court admit a copy based on secondary evidence. The court can subpoena the holder and impose remedies if necessary. Because probate can be technical and local rules matter, consulting an Idaho probate attorney is often the most efficient route.

Disclaimer: This article is informational only and is not legal advice. It does not create an attorney–client relationship. For advice about your specific situation, consult a licensed Idaho attorney.

Helpful Hints

• Keep written records: Save copies of all correspondence and dates you requested the original will.
• Gather proof of last possession: Get witness statements about who last had the original.
• Locate supporting documents: Collect drafts, emails, or notes from your father about his wishes.
• Talk to the probate clerk: Clerks can explain local filing requirements and forms.
• Serve formal notice: Use certified mail or a process server so you have proof of delivery when requesting the original.
• Consider mediation: If family tensions are the cause, a mediated agreement to produce the will can save time.
• If threatened with destruction, preserve evidence: If you reasonably believe the original is in danger, consider getting an emergency court order.
• Hire counsel early if the holder is uncooperative: An attorney can quickly file subpoenas and contempt motions when necessary.
• Verify showings at hearings: Bring multiple copies of any will-copy and organize exhibits and witness lists before the hearing.
• Check Idaho Code Title 15: Review the probate statutes to understand required filings and timelines: https://legislature.idaho.gov/statutesrules/idstat/Title15/