When the original signed will is lost or damaged while being sent to the county probate court — New Jersey

Short answer: If the signed original will is lost or damaged in transit to the probate court in New Jersey, the court can still admit the decedent’s testamentary wishes, but you will usually need to file a special petition and provide strong proof of the will’s execution and contents. There is also a presumption that a will last seen in the testator’s possession and later missing was revoked, so you must be prepared to overcome that presumption with evidence.

Detailed answer

1. Why the original matters

Probate courts prefer to receive and admit the original signed will because the original is the best evidence of the testator’s intent and of proper execution (signatures, witnesses, handwriting, any attestation clause). If the original exists and can be produced, admission is usually straightforward. When the original cannot be located or is damaged, the court must decide whether to accept secondary proof.

2. New Jersey legal framework (general)

In New Jersey, estate and probate law appears in Title 3B of the New Jersey statutes (Estates and Fiduciaries). The probate process allows the court to admit wills to probate and to consider evidence when an original cannot be located. For general information about filing wills and probate procedures, see the New Jersey Courts self-help pages: https://www.njcourts.gov/selfhelp/wills.html. For statutory rules governing estates, search Title 3B at the New Jersey Legislature site: https://www.njleg.state.nj.us/. (This article explains typical procedures under New Jersey law but is not legal advice.)

3. Two common scenarios and what to expect

• The original is lost or destroyed before the court receives it:

  If the original cannot be produced at all (lost in mail, destroyed, or never delivered), a duplicate or copy may be offered. The proponent of the will must file a petition explaining the loss and seeking admission of a copy. The court will require convincing secondary evidence about both the testator’s signature and the will’s contents (for example, a photocopy, a carbon copy, affidavits from the witnesses who saw the will signed, testimony from the person who prepared the will, or other reliable proof).

• The original was damaged in transit (ripped, smeared ink, pages missing):

  When the original exists but is damaged so the court cannot determine validity or contents, the probate petition should include an explanation and evidence of what happened in transit. If parts are unreadable, the estate’s attorney will try to prove the missing parts by witness testimony, copies, drafts, or other records. The court may admit the will (or parts of it) based on clear and convincing proof of the testator’s intent and of proper execution.

4. The “presumption of revocation” and how it affects a missing will

Under general probate principles followed in New Jersey and many other jurisdictions, if a will was last seen in the decedent’s possession and cannot be found after death, courts may presume that the decedent revoked the will. That presumption is rebuttable. To overcome it, the person seeking admission must supply convincing evidence that the will was not revoked but was lost or destroyed by accident (for example, loss in the mail, theft, or clerical misplacement) or that the testator intended the will to remain effective.

5. Evidence that helps admit a lost or damaged will

Useful evidence includes:

• Original or legible copies (photocopies, scanned PDFs) showing the signatures and attestation clause.
• Affidavits from the attesting witnesses that they saw the testator sign the will in their presence and that the signatures are genuine.
• Affidavits or testimony from the drafter (attorney or scrivener) who prepared the will and can describe the contents and execution.
• Evidence of mailing or delivery (tracking numbers, receipts, declarations from postal carriers, or courthouse intake logs) showing the document’s custody before it was lost or damaged.
• Drafts, earlier versions, or copies kept by the testator, attorney, or beneficiaries that match the alleged will’s contents.

6. Practical steps to take right away

1. Notify the probate court clerk that the original was lost or damaged in transit. Ask the clerk about temporary filing steps and whether you should still file a petition with a copy.
2. Check mail/carrier records. If mailed, file a claim with the postal service and preserve any tracking or incident report.
3. Locate any copies (electronic files, photocopies, drafts) and gather affidavits from witnesses and the drafting attorney.
4. Prepare a petition to admit a lost or duplicate will. Include a statement of facts, copies of supporting evidence, and witness affidavits explaining execution and the loss/damage.
5. Expect the court to schedule a hearing. Be prepared to present witnesses and documentary proof at that hearing to overcome any presumption of revocation and to establish the will’s authenticity and contents by clear and convincing evidence.

7. If the courthouse itself lost or damaged the original

If the will was delivered to court staff but subsequently lost or damaged while in the court’s custody, notify the court administration immediately and request the court’s incident report. The same remedies apply—submit copies and affidavits and file a petition to admit the will. You may also have administrative or statutory avenues against the agency or third party that handled the will, but those are separate from the probate petition and may require legal representation.

8. When to get an attorney

Contact an attorney experienced in New Jersey probate if any of these are true:

• The missing or damaged will would change who inherits significant property.
• There is likely to be a dispute among family members or potential beneficiaries.
• There is limited or only weak evidence of execution (no witness affidavits, no copies, uncertain chain of custody).
• You need help drafting and filing the necessary petition and preparing witnesses and evidence for the court hearing.

Helpful Hints

• Do not destroy copies. Keep any copies (paper or electronic) safe and produce them to the court.
• Collect attesting witness contact information and ask them to sign affidavits saying they witnessed the signing and can identify the signature.
• Document the timeline. Note when the will was mailed, any tracking numbers, when it was expected at the court, and the date you discovered the loss or damage.
• If you mailed the will, preserve delivery receipts and file a claim with the carrier (USPS, FedEx, UPS) and keep any incident reports.
• Be proactive. Contact the probate clerk early to learn the court’s local requirements for filing a petition to admit a lost or damaged will.
• Understand the burden of proof. You will likely need to prove authenticity and contents by clear and convincing evidence to overcome any presumption of revocation.
• Consider alternatives. If admitting a copy looks difficult, consider whether an intestate administration or a settlement among heirs is preferable depending on facts.

Where to learn more: Start with the New Jersey Courts self-help page on wills and probate: https://www.njcourts.gov/selfhelp/wills.html. For statutory background, consult Title 3B (Estates and Fiduciaries) on the New Jersey Legislature site: https://www.njleg.state.nj.us/. A probate attorney in New Jersey can explain how these rules apply to your specific situation.

Disclaimer: This article explains general New Jersey probate concepts and is for educational purposes only. It is not legal advice and does not create an attorney-client relationship. For legal advice about a specific situation, consult a licensed New Jersey attorney.