What happens if the original will gets lost or damaged in the mail on its way to the courthouse?
Short answer: You can often still probate the decedent’s wishes in South Carolina, but the process is different. The court will require proof that the will was validly executed, that the decedent did not revoke it, and clear evidence of the document’s contents. You should act quickly to preserve evidence and to assemble witnesses and copies.
Detailed answer — how South Carolina courts handle a lost or damaged original will
Probate courts prefer to receive the original signed will. The original helps prove authenticity and that the testator (the person who made the will) properly executed it. But losing or damaging the original while it’s being mailed to the courthouse does not automatically destroy the testator’s estate plan.
Under South Carolina probate practice (Title 62 of the South Carolina Code of Laws covers probate, wills, and fiduciary relations), courts may permit alternative proof when an original will cannot be produced. The proponent of the will — usually the person who had custody of it or who is asking the court to admit it — must show by admissible evidence that:
- the decedent executed the will in the required manner,
- the decedent did not revoke the will, and
- the copy offered is an accurate reproduction of the original (if only a copy is available) or the court can otherwise determine the terms.
In practice, this means filing a petition to probate the will and supplying the best available proof: a clean photocopy or electronic scan of the will, testimony or sworn affidavits from subscribing witnesses, notarized self-proving affidavits (if available), mail tracking records, and any other documentation showing the will was valid and lost/destroyed without intent to revoke.
For a starting place on relevant South Carolina provisions on wills and probate, see Title 62 of the South Carolina Code: https://www.scstatehouse.gov/code/t62.php.
How the court evaluates the proof
- The court will look for direct evidence the will was validly executed: signatures, witness attestations, or a self-proving affidavit (a notarized statement executed with the will that can remove the need to call witnesses to testify in person).
- The court will require evidence the original was not intentionally revoked — for example, no record of the testator destroying the will, or contemporaneous statements showing the testator intended the copy to be binding.
- The court will require clear and convincing proof in many cases when the original cannot be produced. The exact quantum of proof is fact-dependent.
Common types of evidence that help get a lost will admitted
- Photocopies or electronic scans of the will.
- Affidavits from the witnesses who saw the testator sign the original, confirming the execution and the will’s contents.
- Self-proving affidavit that was signed with the will (if one exists).
- Postal tracking, receipts, or certified-mail records showing the document was mailed to the court.
- Communications (emails, texts) or drafts that reflect the testator’s testamentary intent and the will’s provisions.
- Testimony or affidavits from the person who had custody of the original before mailing — explaining how the original was handled and when it was lost or damaged.
What if the court refuses to admit a copy?
If a probate judge finds the proof insufficient, the judge may deny admission of the copy and refuse to probate under that instrument. That can leave the estate intestate (handled under state intestacy rules) unless another valid will surfaces or stronger proof is later presented. Because outcomes can vary by fact pattern and judge, many people in this situation choose to file a petition and present their proofs promptly.
Practical steps to take immediately
- Stop mailing: If you are mailing a will, use tracked, insured delivery and consider hand-delivering or filing promptly in person when possible.
- Preserve evidence of mailing: save receipts, tracking numbers, certified-mail return receipts, and any delivery failure notices.
- Gather copies: locate any photocopies, scans, or drafts of the will. Print or save them in a secure place.
- Contact subscribing witnesses: ask the witnesses to prepare signed affidavits describing the signing ceremony and confirming the contents.
- Notify the probate court: tell court staff what happened and ask about the required petition to admit a lost or damaged will so you can learn local procedures.
- Act quickly: delay can make evidence less reliable and make opponents’ challenges easier.
When you should consider getting help from a probate attorney
Because lost-or-damaged-will matters often present credibility and evidence issues, many people hire a probate attorney to prepare the petition, obtain and file required affidavits, and present the case in court. An attorney can also help protect the estate while questions about the will are resolved and can advise whether alternative remedies (for example, re-creating the will by agreement) are possible in the specific situation.
Helpful Hints
- Always use tracked and insured delivery when sending original wills to any office. When possible, file in person at the probate court.
- Keep at least one clear photocopy or scanned copy of every original will you create or handle. Store copies in multiple secure places (digital and physical).
- Ask your witnesses to sign a self-proving affidavit when the will is executed. That makes proving the will later easier in South Carolina.
- Keep a short log showing who had custody of the original will, when custody changed, and any steps taken to deliver it to the court.
- If you learn a will was lost or damaged in the mail, collect postal/tracking records immediately and preserve any damaged pages—don’t discard anything.
- File your probate petition promptly. Delays can complicate the process and reduce the strength of evidence.
- If family members disagree, expect contested probate litigation. Early legal guidance helps manage those disputes and meet court deadlines.
Relevant resource: South Carolina statutory provisions on wills and probate are grouped under Title 62 of the South Carolina Code of Laws: https://www.scstatehouse.gov/code/t62.php. For specific local filing rules, contact the probate court clerk in the county where the decedent lived.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed South Carolina probate attorney.