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Detailed Answer

When an original will is lost or damaged in the mail on its way to the probate office in New Hampshire, the probate process does not automatically stop, but the path forward depends on whether the court can locate the original or accept reliable secondary proof of the will’s contents and valid execution.

New Hampshire law treats an original will as the primary evidence of a decedent’s wishes. If the original cannot be produced, the court may still admit the will to probate if the proponent proves three things: (1) the will was duly executed, (2) the decedent did not revoke the will, and (3) the contents of the will. These principles are reflected in New Hampshire probate practice and the Revised Statutes Annotated on wills (see RSA Chapter 551 for the state law framework: https://www.gencourt.state.nh.us/rsa/html/VI/551/index.html).

Typical legal routes the court will consider

• Admission of the damaged original: If a damaged original arrives and still shows the signature and attesting witnesses’ signatures, the register/probate judge will usually admit it if there is enough remaining to confirm proper execution.
• Admission of a copy or reconstruction: If the original is lost or completely destroyed, New Hampshire probate courts can admit a copy or allow proof of the will’s contents by testimony and other evidence. The petitioner must show the will was properly executed and not revoked. Practical proof can include attesting witnesses’ testimony (if available), the attorney’s file, contemporaneous drafts, photocopies, or reliable digital copies.
• Presumption of revocation issues: If the decedent last had possession of the original and it is now missing, some courts consider whether that disappearance indicates revocation. The proponent should produce evidence showing the decedent did not revoke the will (for example, testimony that the decedent intended the will to stand, or evidence of mailing to the probate office before death).

Practical steps to take immediately

1. Contact the post office and check tracking. If you mailed the will, start a missing-mail inquiry with the U.S. Postal Service (report at https://www.usps.com/help/missing-mail.htm) and preserve proof of mailing (receipts, tracking number, certified-mail record).
2. Notify the Register of Probate. Tell the probate office what happened. They can explain local filing policies and may put a temporary hold or note on the file so parties know the original is missing or damaged. New Hampshire Probate Court information is at the NH Judicial Branch site: https://www.courts.state.nh.us/courtdivisions/probate/index.htm.
3. Gather supporting evidence: locate copies (photocopies, scanned PDF, faxes), the drafting attorney’s file, contemporaneous drafts, email exchanges discussing the will, and affidavits from the attesting witnesses confirming execution details.
4. Obtain witness affidavits: if the attesting witnesses are alive, their sworn statements describing signing formalities are very persuasive. If those witnesses are not available, other witnesses who recall the contents or circumstances may help.
5. File a petition with the probate court: if you cannot produce the original, you or your attorney will petition the court to admit the copy or to allow proof of the lost/destroyed will. The petition should explain the search efforts and include supporting evidence and affidavits.

What the court will look for

The probate court will assess whether the will was valid when executed (proper signature, attestation). It will also weigh the credibility and sufficiency of secondary evidence showing the will’s contents and lack of revocation. Clear, consistent proof (original attorney file, credible witness testimony, or contemporaneous copies) increases the chance the court admits the will despite the missing original.

If the will was damaged in transit

If the original arrives but is physically damaged (torn, stained, partially unreadable), the court may still admit it if signatures and material terms remain legible or are otherwise provable. Even a damaged original often has higher evidentiary weight than a copy, so preserve the document exactly as received and notify the court immediately.

When to get a probate attorney

Contact a probate attorney if the original is missing or damaged. An attorney can help investigate the mailing (obtain USPS records), compile admissible evidence, prepare the petition to admit a copy, and represent you at any hearings or adversary contests. Disputes among heirs over the missing document are common, and legal representation reduces the chance of procedural errors that could lead to a costly contest.

Hypothetical example

Suppose an executor mails an original will by certified mail to the Register of Probate, but the envelope is lost. The executor tracks the parcel and obtains postal records showing the envelope was accepted but not delivered. The drafting attorney provides a scanned copy and the attesting witnesses sign affidavits describing the signing ceremony. The register may allow the executor to file a petition to admit the copy, attaching the affidavits and postal records. The probate judge then decides whether that evidence suffices to admit the will despite the missing original.

Key statutory and court resources (New Hampshire)

• New Hampshire laws on wills (RSA Chapter 551): https://www.gencourt.state.nh.us/rsa/html/VI/551/index.html
• New Hampshire Probate Court information: https://www.courts.state.nh.us/courtdivisions/probate/index.htm

Helpful Hints

• Act quickly: start a missing-mail inquiry and notify the probate office immediately.
• Keep originals of any mailing receipts and tracking records; those documents can be strong evidence.
• Preserve chain-of-custody evidence: who last had the will, how it was sent, and how it was handled on receipt.
• Look for multiple copies: attorneys often retain an original or a client copy; find any drafts, scans, or fax copies to use as supporting evidence.
• Get sworn statements from the attesting witnesses as soon as possible while memories are fresh.
• If you are the attorney who drafted the will, keep a clear file note about execution (date, location, witnesses) and keep copies in a secure location.
• Expect opposing parties to question missing originals. Transparency and documentation reduce the risk of a successful challenge.
• Consider hiring counsel experienced in New Hampshire probate law if parties are likely to dispute admission of a copy.

Disclaimer: This article is educational only and is not legal advice. It summarizes general New Hampshire practice and statutes but does not create an attorney-client relationship. For advice about a specific situation, consult a licensed New Hampshire probate attorney.