Detailed answer — how Montana law handles a missing or destroyed will

Montana law treats a will that cannot be produced at the decedent’s death in two main ways, depending on why the original is missing:

1. If the testator destroyed the original will with intent to revoke it:

   If the decedent intentionally burned, tore, cancelled, or otherwise destroyed the will as an act of revocation, courts generally treat the will as revoked. A physical act performed by the testator with the intent to revoke ordinarily invalidates the will.

2. If the original simply cannot be located or was destroyed accidentally or by someone other than the testator:

   Montana courts can admit secondary evidence to prove the contents and validity of the lost or destroyed will. That evidence can include a complete and authenticated copy of the will, testimony from witnesses who saw the will or who can testify about its contents and execution, and other documentary proof. The personal representative or a party seeking admission must convince the probate court that (a) a valid will existed when the testator died, (b) the will was not revoked by the testator, and (c) the copy or testimony accurately reflects the will’s terms.

For general statutory guidance on wills and probate procedures in Montana, see Mont. Code Ann., Title 72 (Probate and Trust Code): https://leg.mt.gov/bills/mca/title_72/.

How a court proves a lost or destroyed will

To admit a lost or destroyed will, a party typically must:

• Locate and present any copies, drafts, or electronic versions of the will.
• Obtain sworn statements from the attorney who prepared the will, from the witnesses to execution (if available), or from family members who can confirm the document’s terms.
• Show through testimony or documents that the testator did not revoke the will (for example, no later will or formal revocation appears).
• Explain how the original came to be missing and why it cannot be produced (accident, loss, theft, destruction by another person, or destroyed by the testator with intent to revoke).

If the court is satisfied the evidence proves the will existed and was unrevoked, it can admit the copy or other proof and distribute the estate according to the proved terms.

Who has the burden of proof?

The person asking the court to admit the lost or destroyed will (often the named personal representative or a beneficiary under the alleged will) bears the burden to prove the will’s existence, execution, and that it was not revoked. Evidence can include copies, witness testimony, or other corroborating documents such as beneficiary lists, bank records, or attorney file documents.

Practical effects on estate administration

Even when a court admits a lost or destroyed will, probate may take longer and cost more. Expect additional hearings, witness statements, and documentary proof. Creditors and potential heirs can challenge admission, which can extend the timeline. If the court finds the will was revoked, the estate will be administered under a prior valid will (if any) or under Montana’s intestacy rules (distribution to heirs by statute).

Common fact patterns and how courts typically respond

Hypothetical 1 — original burned by testator

If the testator is known to have deliberately burned the will and admits doing so, the court will usually treat that as a revocation. If there is convincing evidence the act was accidental or done by someone else, the court will consider secondary evidence before deciding.

Hypothetical 2 — original lost but a complete lawyer’s copy exists

Courts commonly admit a complete, authenticated copy together with testimony from the drafting attorney and any subscribing witnesses. That allows the estate to be distributed according to the copied terms, provided the court is satisfied the original wasn’t revoked.

Hypothetical 3 — safe deposit box sealed and will missing

If the original was last known to be in a safe deposit box and that box is sealed or the bank cannot locate the will, the personal representative should document the bank’s search, obtain affidavits, and bring that information to court along with any copies or witness testimony.

What to expect when you go to probate court

You can expect the court to require a careful record. Typical steps include:

1. Filing a petition for probate and admitting the will (or a copy) to probate.
2. Serving or notifying heirs and potential interested parties.
3. Scheduling a hearing where witnesses may testify about execution, content, and how the original became unavailable.
4. The judge evaluating all evidence and deciding whether to admit the copy or other proof as the testator’s last valid will.

Because rules and evidentiary standards vary, cases with contested lost-will admissions can be fact-intensive. See Montana probate rules and procedures at the Montana Code and local court resources: Mont. Code Ann., Title 72.

Helpful hints — steps you can take right now

• Search thoroughly before assuming the will is gone: check home, safe, attorney files, and bank safe deposit boxes.
• Look for photocopies, printed or electronic drafts, or emails from the drafting attorney. A complete copy can be powerful evidence.
• Talk to the attorney who prepared the will. Their file often contains drafts, a copy, or notes about execution and witnesses.
• Gather witnesses who saw the will or watched it being signed. Obtain written, sworn statements if possible.
• Document any evidence that points to revocation (e.g., statements by the decedent, evidence the document was physically altered by the decedent, or a later will).
• File a petition with the probate court promptly. Delaying can complicate creditor claims and distribution to heirs.
• Consider hiring a lawyer experienced in probate litigation if the case is contested or if a large estate is involved.
• Keep careful records of all steps you take to locate the original will — a clear search trail helps in court.