Filing a Decedent’s Will in Maine When the Original Is Withheld

Short answer: If someone who has the original will refuses to hand it over, you can ask the Maine Probate Court to compel production or to admit a copy of the will into probate after proving the will’s authenticity. Expect the court to require sworn statements, witness testimony, or other proof. If you cannot prove the will, intestacy rules may apply. This article explains the steps, what evidence helps, and how Maine process generally works. This is educational information only and not legal advice.

What the law covers (where to start)

Maine’s probate system governs how wills are filed and admitted to probate. For background on Maine probate procedures and forms, see the Maine Judicial Branch probate pages: https://www.courts.maine.gov/. For state statutes that apply to wills and probate generally, see the Maine Revised Statutes (search Title 18-A or the probate-related chapters) at the Maine Legislature website: https://www.mainelegislature.org/legis/statutes/.

Step-by-step: What to do if the original will is being withheld

1. Preserve evidence and document communications.

   Keep copies of any communications (texts, emails, letters) asking the holder to deliver the original will. Note when you asked, who responded, and what they said. If you have a photocopy of the will or a scanned copy, save that and any metadata showing when it was made.

2. Talk to the person holding the original (one more time, in writing).

   Send a polite written request (email or certified mail) asking for delivery of the original will to the county probate office or to you as the proposed personal representative. Tell them that the will needs to be filed and that you will seek the court’s help if they do not cooperate. Keep a copy of that request and any delivery receipts.

3. Contact potential attesting witnesses.

   Identify anyone who signed as a witness on the will or anyone who saw the testator sign it. Witness testimony is often decisive. Ask witnesses to preserve their recollection and to be prepared to sign an affidavit or testify if needed.

4. File a Petition with the Probate Court.

   If the holder still refuses, file a petition in the probate court in the county where the decedent lived. Ask the court to (a) order the person to produce the original will or (b) admit a copy to probate if the original cannot be produced. The court paperwork generally asks for a copy of the will (if you have one), the death certificate, and a description of efforts to locate the original.

5. Ask the court to issue a citation or subpoena.

   The probate judge can order the person who has the will to produce it in court or to show cause why they should not be compelled. If the holder refuses a court order, they can face sanctions, contempt, or other remedies.

6. Seek probate of a copy or secondary evidence if needed.

   If the original cannot be located or is intentionally withheld, you can ask the court to admit a copy of the will or to accept other proof of the instrument’s contents and validity. The court will evaluate evidence such as a witnessed copy, testimony of attesting witnesses, the testator’s handwriting, custodian statements, or other convincing proof.

7. Be prepared for contested hearings.

   If the holder opposes probate or disputes authenticity, expect a hearing where both sides present evidence. The court will weigh credibility and may require clear-and-convincing proof before admitting a will absent the original.

Possible legal remedies and what the court can do

• Order to produce the will. The court can order the holder to produce the original for inspection or filing.
• Subpoena or contempt. If the holder disobeys a court order, the court may issue sanctions or hold the person in contempt.
• Admit a copy or secondary evidence. If the original is unavailable, the court may admit a copy if you provide convincing evidence of authenticity (attesting witness testimony, credible circumstantial evidence, or a custodian’s explanation of loss/destruction).
• Default to intestacy. If you cannot prove the will’s validity, the estate may be settled under Maine’s intestacy rules, which distribute assets according to statute rather than the decedent’s wishes. Check the Maine Revised Statutes for intestate succession rules (see the statutes index above).

What evidence helps the most

• Signed, dated photocopy or scanned copy of the will with clear signatures.
• Affidavits from the witnesses who saw the testator sign the will or who can confirm the testator’s signature and intent.
• Communications showing the testator intended the copy to be their will (emails, drafts, notes).
• Proof that the holder intentionally withheld the document (messages admitting refusal to deliver).
• Testimony about the chain of custody and where the original was kept.

Practical tips for a smoother process

• File early. Probate delays can complicate asset management. Opening the estate formally gives the court authority and can stop transfers.
• Use certified mail for requests so you have proof of delivery.
• Gather witnesses quickly—memories fade and witnesses may become harder to locate.
• Keep copies of everything you file with the court and the court number for your file.
• Consider mediation if family conflict is high; sometimes an agreement to turn over the document avoids court fights.

When to get an attorney

If the holder refuses court orders, if witnesses disagree, or if the estate is large or contains complicated assets, talk with a probate attorney. An attorney can prepare the petition, request subpoenas, and represent you at hearings. For help finding local probate counsel, contact the Maine State Bar Association or use the Maine Judicial Branch resources: https://www.courts.maine.gov/.

Summary checklist

1. Preserve copies and communications.
2. Request the original in writing and document delivery.
3. Locate and secure witnesses.
4. File a petition in the probate court (ask for production or admission of a copy).
5. Ask the court to subpoena the holder if necessary.
6. Present witness testimony or other proof if the original remains withheld.
7. Consult a probate attorney for contested matters.

Helpful Hints

• Be calm and professional in all written requests—courts view documented, reasonable steps favorably.
• Make one last written demand for the original before filing—courts will expect you tried to resolve the issue informally.
• Keep a dated file of every step: requests, responses, and receipts.
• If you have a copy but no witnesses, look for other supporting evidence (emails, drafts, lawyer notes, safe-deposit box records).
• If someone claims the original was destroyed, get a sworn statement describing when/how it was destroyed.
• If the estate needs urgent action (bills, property at risk), file a limited petition so the court can authorize a personal representative while the will dispute proceeds.

Disclaimer: This article explains general Maine probate concepts and options when an original will is withheld. It does not constitute legal advice. Laws vary by situation. For advice about a specific case, consult a licensed Maine probate attorney or contact the probate court in the county where the decedent lived.