Detailed Answer: How Nebraska treats a lost or destroyed will
When a will cannot be produced after a testator’s death, Nebraska law gives the probate court ways to decide whether the will was revoked by the testator or simply lost or accidentally destroyed. The court’s job is to determine the testator’s intent and the contents of the will so the estate can be distributed lawfully.
Key legal framework
Nebraska’s probate statutes govern wills, revocation, and procedures for admitting wills to probate. For the full statutory framework, see Nebraska’s probate statutes (Chapter 30): Neb. Rev. Stat., Chapter 30.
Two different questions the court asks
- Was the will revoked? If the will was intentionally destroyed or defaced by the testator (for example, burned, torn, or otherwise physically destroyed with intent to revoke), many courts treat that physical act as evidence the testator revoked the will. The probate court will examine all evidence about the testator’s intent.
- If the will was not revoked, what did it say? If the court finds the testator did not intend to cancel the will—say the will was lost or destroyed by accident, by someone else, or misplaced—the court may allow proof of the will’s terms so the estate can be administered according to the testator’s wishes.
How a lost or destroyed will can still be admitted
If the original will cannot be produced, the court will consider evidence to decide both that the testator did not revoke the will and what the will’s terms were. Typical types of evidence include:
- Testimony from witnesses who saw the will or who can testify about the testator’s intent;
- Copies of the will (drafts, photocopies, electronically stored copies);
- Proof of how and where the original was stored (safety deposit box, attorney file, home safe) and any records showing the will’s existence;
- Correspondence or notes from the testator referencing the will or its contents;
- Evidence that the will could not be found despite reasonable search, and that the testator did not revoke it.
The probate judge weighs this evidence and decides whether the lost or destroyed will should be treated as still valid and admitted to probate. The precise evidentiary showing may require convincing proof of the will’s terms and non-revocation.
When the court will presume revocation
If the original will is found destroyed and there is clear evidence the testator physically destroyed it with the intent to revoke, the court often treats the act as revocation. For example, if witnesses saw the testator tear up a will and say they intended to revoke it, the court will likely find revocation.
Practical steps to take after you discover a will is missing
- Do not destroy related documents. Preserve any copies, drafts, or notes you find.
- Ask the deceased’s lawyer or the location where the will might have been stored (safe deposit box, home, bank) for any records.
- Identify and locate people who saw or helped prepare the will (witnesses, notary, attorney) and get written statements if possible.
- Keep a log of searches you’ve done to find the original will—time, place, and who searched.
- Consult a Nebraska probate attorney promptly. They can advise on the standard of proof likely required and prepare the petition to admit a lost will if appropriate.
What to expect in court
An interested person (often the personal representative or a beneficiary) files a petition with the probate court asking the judge to admit the lost or destroyed will. The petition should explain the circumstances of the loss, present any copies or witness statements, and ask the court to admit the will or to find it revoked. The court may set a hearing and allow other interested parties to object.
Costs and timing vary by county and case complexity. Expect extra time and expense when the court must evaluate competing evidence about intent and the will’s contents.
Common hypothetical examples
Example 1 — Accidental destruction: A will stored in the testator’s home is lost in a house fire. Copies and witness testimony establish the will’s terms. The court may admit the will’s contents to probate because the destruction was accidental and does not show intent to revoke.
Example 2 — Intentional destruction: The testator tears the will in front of others and says “this is revoked.” The court may find the will revoked and refuse to admit it.
Helpful Hints
- Search everywhere for the original: attorney files, safe-deposit boxes, home safes, files, and the testator’s email or cloud storage.
- Collect copies and drafts immediately; they may be critical evidence.
- Document your search steps and preserve evidence—this helps show the will wasn’t intentionally destroyed or concealed.
- Talk to witnesses who saw the will signed or stored and ask for written statements describing what they saw.
- Do not assume a missing will means intestacy. If you can prove the will’s terms and non-revocation, the court may admit it.
- Act promptly. Probate deadlines and disputes escalate the longer you wait.
- Consult a Nebraska probate attorney to prepare the required pleadings and to present evidence effectively to the court.
Where to read the law: Nebraska’s probate statutes are found in Chapter 30 of the Nebraska Revised Statutes: https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=30. Your attorney can point to the specific sections and cases that most directly apply to a lost-or-destroyed will situation.
Final note and disclaimer
This article explains general principles about lost or destroyed wills under Nebraska law to help you understand how a probate court typically handles these situations. It is educational only and is not legal advice. For guidance about a specific estate, contact a licensed Nebraska probate attorney promptly.