Detailed Answer
This section explains what typically happens in Maryland when an original will cannot be found or appears to have been destroyed after the testator (the person who made the will) has died. This is general information only and not legal advice.
Key legal principles
- Presumption of revocation by the testator’s act: If the decedent last had the original will in their possession and the will is later missing, Maryland courts often begin with a presumption that the testator intended to revoke the will by destroying or disposing of it. That presumption can be overcome by evidence to the contrary.
- Revocation requires intent: Physical destruction (burning, tearing, crossing out) only revokes a will if the act was done with the testator’s intent to revoke. Accidental loss or destruction without intent is not automatic revocation.
- Proof by secondary evidence: If the original will is lost or destroyed but the proponent (the person asking the court to admit the will) can produce a clear, convincing, or otherwise sufficient substitute (such as a photocopy, draft, or witness testimony about the contents and proper execution of the will), a Maryland court may admit that evidence and probate the will.
How the probate process typically works when the original will is missing
1. File a petition with the appropriate probate court (in Maryland, probate matters are handled through the county courts and through the Orphans’ Court for administration of estates). If no original will is found, the person who expects to be the personal representative should not distribute assets before the court acts.
2. The proponent must explain how and when the original was last seen and why it cannot be produced. A court will consider whether the will was last in the decedent’s custody and whether anyone else had access to it.
3. The court will decide whether the missing original is evidence of revocation. If there is no evidence of revocation, the court will consider secondary evidence of the will’s contents and proper execution — commonly attesting witnesses’ testimony, a photocopy, a scanned electronic copy, or drafts that show the testator’s intent.
4. If the court finds sufficient proof of the will’s contents and proper execution, it may admit the copy or testimony as the functional equivalent of the original and appoint the personal representative named in the will. If the court finds revocation, the estate will be handled under Maryland’s intestacy rules (distribution to heirs under state law) unless another valid will is admitted.
Practical evidentiary points Maryland courts consider
- Testimony of attesting witnesses who observed the testator sign the will and can describe the document’s contents.
- Copies kept by the testator’s attorney, bank, or family member, or a certified copy filed previously with a court or other official.
- Correspondence, drafts, or digital files that corroborate the will’s provisions and the testator’s intent.
- Evidence of actual destructive acts combined with proof of intent to revoke (for example, a credible witness saw the testator tear the will while saying it was revoked).
- Timing and circumstances: if the will disappeared after the testator’s health declined, evidence that someone else had access or that the decedent lacked capacity at the time of any alleged revocation matters.
What happens if the court concludes the will was revoked or cannot be proved?
• If the court finds the will was validly revoked: the estate will be distributed under Maryland intestacy laws (the heirs under Maryland law inherit according to statutory priority) unless another valid will exists.
• If the court admits a copy or secondary evidence: the estate is administered in accordance with the proved terms of that will, and the nominated personal representative (executor) may be appointed.
Relevant Maryland resources
For background on Maryland probate and wills procedures, see the Maryland Judiciary pages on probate and Orphans’ Court administration: https://www.mdcourts.gov/orphanscourt and general information about wills and probate at the Maryland Courts site: https://www.mdcourts.gov. For the statutory framework governing estates and trusts, review the Maryland Code (Estates & Trusts) via the Maryland General Assembly: https://mgaleg.maryland.gov. These links lead to Maryland government resources that explain probate procedures and statutory rules.
Helpful Hints
- Do not distribute assets before the court rules. Unauthorized distributions can lead to personal liability.
- Search likely places immediately: attorney files, safe-deposit boxes, home safes, personal computers, cloud storage, and with family members who may have copies.
- Contact any attesting witnesses promptly. Their testimony can be critical to admitting a copy of a lost will.
- Preserve any copies or drafts, including scans, emails, or notes that confirm the will’s contents or the testator’s intent.
- Collect proof about the will’s last known location and who had access. Courts weigh this heavily when inferring revocation.
- Consider immediate consultation with a Maryland probate attorney to evaluate evidence, prepare a probate petition, and represent interested parties in court proceedings.
- If you suspect foul play (someone intentionally hid or destroyed the will without the testator’s knowledge), preserve all evidence and inform counsel — criminal or civil remedies may apply.
Disclaimer: This article explains general Maryland legal principles about lost or destroyed wills for informational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Maryland attorney or the appropriate county Orphans’ Court.