Disclaimer: I am not a lawyer. This article is educational and does not constitute legal advice. If you have a specific situation, consult a qualified Indiana probate attorney.
Detailed answer — what to expect when an original will is lost or damaged in the mail (Indiana)
Short answer: Losing an original will in the mail does not automatically prevent the will from being probated, but you must take prompt steps to locate proof of the will and ask the probate court to admit a non-original (a copy or other evidence) while showing the court the document existed, what it contained, and that it was not revoked. Indiana’s probate laws are in Title 29 of the Indiana Code; the probate court will apply those rules when deciding whether to admit a will that is not available in its original form. See the Indiana Code, Title 29: https://iga.in.gov/legislative/laws/2024/ic/titles/29.
Why the original matters
Courts prefer the original signed will because it best proves the testator’s signature, the presence of required witness signatures, and that the document was not later revoked. If the original is lost or damaged in transit to the clerk’s office, the court will want reliable evidence about three basic things before admitting a copy:
- The will existed and was the testator’s last will;
- What the will’s contents were (who inherits what); and
- The will was not revoked by the testator before death.
Common outcomes in Indiana
If the original is truly lost or destroyed and cannot be produced, the person asking the court to admit a copy (the proponent) will generally file a petition and present secondary evidence: a photocopy or digital scan of the will, testimony from the attorney who drafted the will, testimony from attesting witnesses who saw the testator sign, and any correspondence or delivery records showing the will was sent to the clerk. The court will weigh this evidence before deciding whether to admit the copy into probate. Practical outcomes include:
- The court admits the copy and opens probate under that will’s terms.
- The court refuses to admit the copy if the evidence is insufficient or if the court concludes the testator revoked the will.
- The court may hold a hearing and require additional affidavits or testimony from witnesses, the drafting attorney, or the person who mailed the document.
Key evidence that helps your case
- A clear, legible copy or scan of the original will.
- Testimony or an affidavit from the attorney who drafted or stored the original will confirming the original existed and describing its execution.
- Affidavits from attesting witnesses who watched the testator sign (if they are available).
- Mailing or delivery records (tracking numbers, postal receipts) showing that the will was mailed to the courthouse and never received.
- Copies of correspondence, drafts, or emails that show the testator’s intent and the will’s contents.
- Proof that the testator did not later cancel or destroy the will (for example, lack of altered documents, witness testimony that the testator did not revoke).
Practical steps to take right away
- Contact the probate clerk and confirm whether the courthouse actually received the mailing. Clerks keep records of filings and mail. If the clerk received a damaged envelope, that could be important.
- Check postal tracking and file a claim with the carrier (for USPS, see the USPS claims page). Keep receipts and tracking numbers.
- Search the decedent’s home, safe, attorney files, or bank safe-deposit box for an original or additional copies.
- Collect any copies, drafts, and related communications. Get scanned copies of anything you find.
- Identify and contact attesting witnesses and the attorney who prepared the will. Ask them to provide sworn affidavits describing execution and custody of the will.
- Talk to a probate attorney. They can prepare the required petition to admit a copy or to reconstruct the will and represent you at any hearing.
- If necessary, file a formal petition in the appropriate Indiana probate court asking admission of a copy of the will or an order to reconstruct the will from other evidence.
What the probate hearing may require
The court may schedule a hearing. Expect to present witnesses and documentary evidence that show the will’s existence, its contents, and no subsequent revocation. The court may also allow cross-examination if interested parties object. Because probate judges have discretion, outcomes often turn on the strength and credibility of the evidence.
Statutes and official resources
Indiana’s probate laws are in Title 29 of the Indiana Code. For general guidance on probate procedure and filings in Indiana, see the Indiana General Assembly: Indiana Code, Title 29 (Probate). For practical court and filing information, see the Indiana Judicial Branch probate self-help resources: https://www.in.gov/judiciary/self-service/probate/.
Helpful Hints
- Act fast: Immediate steps (postal claims, searches, contacting the clerk) increase the chance of recovering the document or getting helpful evidence.
- Keep all receipts, tracking numbers, and correspondence related to mailing the will. These records are powerful proof of custody and delivery attempts.
- Get written, sworn statements (affidavits) from any witnesses, the drafting attorney, and the person who mailed the will. Courts rely on sworn evidence when originals are missing.
- Preserve copies and digital scans of the will and related documents in multiple secure locations to avoid future loss.
- Expect an objection: Family members or potential beneficiaries sometimes challenge admission of a non-original will. Strong evidence and good affidavits reduce the risk of losing the probate on that basis.
- Consult a probate attorney early. They can file the correct petitions, draft affidavits, and guide you through hearings and evidentiary requirements under Indiana law.
- If a lost original raises suspicion of revocation (for example, the testator had motive and opportunity to destroy the will), be prepared for the court to scrutinize the evidence more closely.
If you need help preparing a petition or locating counsel in Indiana, contact your local county probate clerk for procedure and forms, and consider speaking with a probate lawyer familiar with local practice.