Short answer

If an original will is lost or damaged while being mailed to the courthouse in Montana, the probate court can still admit the testator’s intent and the will’s terms, but you will likely need to use alternate proof (a copy, witness testimony, affidavits, or other strong evidence) to show the will was validly executed and not revoked. The process and the type of evidence the court requires can be fact-specific, so act quickly to preserve evidence and consult an attorney.

How Montana courts handle lost or destroyed wills

Montana’s probate statutes and rules govern how a court evaluates wills and proof of wills. If the original written will cannot be produced because it was lost in the mail or damaged beyond legibility, the court does not automatically refuse to consider the testator’s wishes. Instead, the court will evaluate substitute proof to answer two main questions:

1. Was the document (or its copy) the decedent’s validly executed will? (i.e., was it signed and witnessed correctly under Montana law?)
2. Was the original will revoked by the decedent before death?

To find the answers, the court will look at available evidence: copies of the will, testimony or affidavit of the attesting witnesses, testimony from the person who last had possession, correspondence or other documents showing the testator’s intent, and any physical fragments of the damaged document.

Montana law on wills and probate is found in the Montana Code Annotated, Title 72 (Probate and Protective Proceedings). For a starting point on statutory provisions, see the Montana Code online: Mont. Code Ann., Title 72 (Probate).

Typical routes to probate when the original is missing or destroyed

Below are common approaches a Montana probate court may accept, depending on the evidence you can provide:

• Admit a properly attested copy: If you have a clear copy of the signed will and the attesting witnesses can confirm that the copy accurately reflects the testator’s last will and that they witnessed its execution, the court may admit the copy.
• Affidavits from witnesses: Affidavits from the subscribing witnesses (or credible testimony in court) that the decedent signed the will, that the attestation requirements were met, and that the decedent did not revoke the will can substitute for an original.
• Proof of loss in the mail: Documentation showing you mailed the original to the clerk (tracking, receipts) and evidence that the will was validly executed before mailing can support admission of a copy or other proof.
• Fragmentary physical evidence: If the mailed package was damaged but parts of the will remain, the court can consider those fragments along with witness testimony and copies.
• Contest risk and intestacy: If the parties cannot prove the lost will, the court may apply intestacy rules (distributing the estate as if there were no valid will) or admit a different instrument if validly executed. Expect potential contests from heirs.

What you should do right away if the original will is lost or damaged in the mail

1. Preserve all mail evidence. Keep tracking numbers, receipts, postal notices, the damaged envelope or package, and photos. If the postal service acknowledges loss or damage, keep that written communication.
2. Document the chain of custody. Write down who handled the will, when you mailed it, who received it (if anyone), and how it was packaged.
3. Obtain or create copies. Locate any photocopies, scans, drafts, or email attachments of the will. The court will treat them as important evidence.
4. Collect witness statements. Get affidavits or contact information for the attesting witnesses and anyone else who saw the testator sign the will or who saw the original will after signing.
5. Notify the probate clerk. Tell the clerk of the county where you planned to file what happened. They can explain local procedures and deadlines.
6. File a probate petition promptly. Don’t delay opening the estate. Filing a petition to admit a copy or to prove the lost will preserves your position and triggers the court’s protective procedures.
7. Contact a Montana probate attorney. Even early advice can shape your evidence collection and filing strategy.

Evidence the court finds most persuasive

Montana courts generally look for strong, credible proof that the will was properly executed and not revoked. Useful items include:

• Affidavits or testimony from one or both attesting witnesses confirming execution and lack of revocation.
• A clear copy of the will that matches witness recollection.
• Correspondence (emails, letters) showing the testator’s intent or directing the will’s filing.
• Postal tracking history, delivery attempts, or a written USPS (or carrier) admission of loss/damage.
• Any contemporaneous notes or drafts showing the testator’s final instructions.

Possible outcomes in Montana probate court

The court’s decision depends on the strength of the evidence. Common outcomes include:

• Admit a copy or reconstruct the will: If the court finds credible proof of the will’s contents and proper execution, it can admit a copy or proof of the lost will and probate under those terms.
• Find no valid will: If evidence is insufficient, the court may refuse to admit the will and the estate could be distributed under Montana’s intestacy rules.
• Partial admission: The court may admit certain provisions supported by strong evidence and reject others.
• Contests and litigation: Heirs or beneficiaries may dispute admission, in which case the probate can become contested litigation.

Practical tips to reduce risk when filing a will

• Whenever possible, hand-deliver the original will to the county clerk and get a receipt.
• Keep multiple certified copies and digital scans in secure places.
• Record who has custody of the original and use tracked, insured delivery if you must mail it.
• Ask attesting witnesses to sign sworn affidavits about the will’s execution and keep those with the copy.

Where to look in Montana law

Montana’s probate laws appear in the Montana Code Annotated, Title 72. For an overview of statutes relating to wills, probate procedure, and estate administration, see the Montana Code: Mont. Code Ann., Title 72 (Probate). For county-specific practice, contact the clerk of the district court in the county where probate would be opened.