Detailed Answer — What happens if a will is lost or destroyed under Missouri (MO) law?
Short answer: Missouri courts can admit a lost or destroyed will to probate if the person trying to prove the will (the proponent) shows by clear and convincing evidence that the will existed, that it was validly executed, and that it was not revoked by the decedent. If the proponent cannot meet that burden, the estate may be distributed under intestacy rules. See Missouri Revised Statutes, Chapter 474 (Wills): RSMo Chapter 474.
How Missouri courts treat a lost or destroyed will
When an original will cannot be produced at probate, Missouri courts follow a two-part practical and legal inquiry:
- Proof that the will existed and what its terms were. The proponent must present evidence (copies, drafts, testimony, or other corroboration) showing the document’s contents and that it was executed according to law.
- Proof that the decedent did not revoke the will. If the decedent had the will in their possession and it later cannot be located, courts give weight to a presumption of revocation by the decedent’s act (e.g., tearing, burning). The proponent must offer evidence that rebuts that presumption—showing the loss or destruction was accidental, someone else’s act, or that a revocation did not occur.
Standard of proof
Missouri requires clear and convincing evidence to admit a lost or destroyed will. That standard is stronger than a preponderance of the evidence. Clear and convincing evidence can include a complete or partial copy of the will, testimony from one or more attesting witnesses about the will’s execution and contents, attorney records, drafts, contemporaneous correspondence, or other documents that corroborate the will’s terms and the circumstances of the loss.
Typical evidence used to prove a lost or destroyed will
- Copies or photocopies of the will (signed or unsigned).
- Drafts, annotated copies, or electronic versions saved by the decedent or attorney.
- Testimony from the attesting witnesses that the decedent signed the will in their presence and that the will’s terms are accurate.
- Attorney files or affidavits from the attorney who prepared or stored the will.
- Other documentary evidence (emails, bank communication, deposition or recorded statements) that confirm the will’s terms or the decedent’s intent.
What the probate petition looks like
The proponent files a petition in the appropriate Missouri probate court asking the court to admit the lost or destroyed will and to appoint a personal representative. The petition should attach any copies, affidavits, witness statements, and a sworn statement explaining how the original became unavailable. The court will give notice to interested parties; those parties can object and present counter-evidence (for example, evidence the decedent revoked the will).
Possible outcomes
- If the court is satisfied by clear and convincing evidence, it may admit a copy or other evidence of the will to probate and distribute the estate under that will.
- If the court finds the proponent did not meet the burden or finds a valid revocation, the court will refuse admission and the estate will be distributed according to Missouri’s intestacy rules.
- Parties can contest admission, and litigation can lead to additional hearings, discovery, and appeals.
Practical example (hypothetical facts)
Jane Doe made a signed, witnessed will in 2018 and gave the original to her attorney. After Jane’s death in 2024, the attorney reports the file was accidentally destroyed in an office move. Jane’s beneficiaries present a signed photocopy of the will, two attesting witnesses who remember Jane signing the will and can describe its contents, and the attorney’s file notes. A Missouri probate court could admit the copy if it finds these materials constitute clear and convincing evidence of the will’s existence, valid execution, and lack of revocation. If, instead, the will had been in Jane’s locked home and disappeared shortly before death with evidence Jane had discussed tearing it up, the court might infer revocation and refuse admission.
Where to find Missouri law
Missouri’s statutes governing wills and probate are in Chapter 474. For the text of the statutes, see: RSMo Chapter 474 — Wills. Local probate court rules and procedures vary by county; check the circuit court probate division for the county where the decedent lived.
Important disclaimer: This information is educational only and not legal advice. It does not create an attorney-client relationship. For advice about a specific situation in Missouri, consult a licensed Missouri probate attorney.
Helpful Hints — Steps to take right away if a will is lost or destroyed in Missouri
- Search thoroughly: check the decedent’s safe, home, safe-deposit box, attorney files, cloud storage, email, and any place the decedent kept important papers.
- Preserve evidence: keep any copies, drafts, emails, or notes relating to the will. Do not alter or destroy any document or electronic file.
- Contact the drafting attorney: they may have a copy, file notes, or a memory of the will’s contents and signing circumstances.
- Locate attesting witnesses: identify and get signed affidavits from witnesses who saw the decedent sign the will or who know its terms.
- Gather corroborating records: bank statements, beneficiary change forms, and communications that match the will’s distribution plan strengthen your case.
- Act quickly: some evidence disappears over time and memories fade. Prompt action helps meet the clear-and-convincing standard.
- Notify interested parties: beneficiaries and likely heirs must receive notice of the probate petition so they can object if appropriate.
- Consult a Missouri probate attorney: an attorney can draft the required petition, prepare affidavits, and represent you at hearings to improve the chance of successful admission.