How to get an original will filed in Tennessee when someone refuses to hand it over

Short answer: File a petition for probate in the county where your dad lived. If your step-sister will not surrender the original, ask the probate court to compel production (subpoena or order) and, if necessary, to admit a copy into probate after you present evidence showing the original’s validity and that it was lost or is being withheld. You can also ask the court for temporary protection of the estate and to hold the person who refuses in contempt if required.

Detailed answer — step by step under Tennessee law

This section explains typical steps you can take in Tennessee when the person who has custody of an original will refuses to submit it to the probate court. This is general information, not legal advice.

1. Why the original matters

Tennessee courts prefer to admit the original signed will to probate. The original helps the court verify signatures, witness attestations, and the testator’s intent. Tennessee statutes and probate practice generally require proof of the will’s validity before distributing assets. See Tennessee probate information at the Administrative Office of the Courts: Tennessee Courts — Probate, and the Tennessee Code governing wills (Title 32): Tenn. Code Ann., Title 32.

2. File a petition for probate in the correct county

Start by filing a petition with the probate court in the county where your father was domiciled when he died. The petition asks the court to open a probate estate and admit the will. If you have a copy of the will, attach it to your petition and say why you do not have the original (for example, the holder refuses to deliver it).

3. Ask the court to compel production

When someone refuses to surrender an original will, the court can use its powers to compel production. Typical tools include:

• Issuing a subpoena duces tecum ordering the person to bring the original will to court or to the clerk.
• Ordering the person to show cause why they are not turning over the will.
• Holding the person in contempt if they disobey a valid court order.

To get these remedies, you usually must file a motion or ask for an order in your probate petition. The court will schedule a hearing and can require the holder to produce the document.

4. If the original cannot be produced: probate a copy with secondary evidence

If the original is lost or being intentionally withheld and the holder refuses to produce it even after an order, Tennessee courts can admit a copy of the will if you provide adequate proof of the will’s execution and that it was not revoked. Expect a higher evidentiary burden. Useful evidence includes:

• Stamped, dated photocopies or electronic copies of the will.
• Affidavits from the attesting witnesses who saw your dad sign the will.
• Affidavits from people who knew your dad’s testamentary intentions (pursuant to court rules) and can confirm the copy accurately reflects the will.
• Correspondence or contemporaneous documents showing the will existed and its terms.
• Evidence that the holder intentionally withheld or destroyed the original (which may affect admissibility and remedies).

The probate judge weighs this evidence and may admit a copy if convinced the original existed and was not revoked. See Tennessee code on wills (Title 32) for probate procedure: Tenn. Code Ann., Title 32.

5. Ask the court for temporary protection of the estate

If assets are at risk or immediate action is needed, you can ask the probate court for temporary or emergency relief, such as appointing a temporary administrator or custodian to preserve estate assets while the will dispute is resolved. This prevents improper transfers or dissipation of property while you pursue the will.

6. Consider civil remedies and potential criminal issues

If a person knowingly conceals, destroys, or alters an instrument to defeat probate, the court may consider sanctions, contempt, or other remedies. In some circumstances, criminal statutes may apply — discuss this with an attorney or local prosecutor if you believe a crime occurred.

7. Practical evidence and witnesses you should collect

Gather everything that proves the will’s existence and authenticity:

• All paper or digital copies of the will.
• Contact information and signed affidavits from attesting witnesses.
• Emails, drafts, or notes showing your dad’s intent.
• Communications with your step-sister demanding production (keep copies of texts, certified letters, emails).
• Any other documentation showing possession or handling of the original will.

What you can expect in court

The probate judge will review evidence, hear witnesses, and decide whether to compel production, admit a copy, appoint a personal representative, or impose sanctions. Courts try to honor the decedent’s intent, but they must ensure the will is authentic and not revoked.

Common obstacles and how to handle them

• Holder claims privacy or ownership: File a motion and request a subpoena/production order from the probate court. If they still refuse, ask the court to hold them in contempt.
• No witnesses available: Present secondary evidence (copies, corroborating testimony) and explain why witnesses are unavailable.
• Holder says the will was destroyed: The court will examine evidence of destruction and possible intent to revoke; if destruction was by someone else, the court will consider admissibility of a copy.

How an attorney can help

A probate attorney can:

• Prepare and file the probate petition and any motion to compel production.
• Draft subpoenas, affidavits from witnesses, and evidence to support admission of a copy.
• Represent you at hearings and handle settlement talks or litigation.
• Advise on temporary administration to protect estate assets.

Helpful Hints

• File the probate petition promptly in the county where your father was domiciled.
• Keep careful records of all requests for the original (dates, mode of communication, responses).
• Ask attesting witnesses to sign sworn affidavits about seeing the signing.
• Send a written demand (certified mail, return receipt) to the holder before filing—this creates a record.
• Request subpoenas through the probate court if the holder won’t cooperate.
• Preserve digital evidence (scans, emails, photos) with metadata if possible.
• If assets are at risk, move quickly to ask for temporary appointment of an administrator.
• Consider consulting a probate attorney early; many offer a short initial consultation to review documents and options.

Where to find Tennessee statutes and more information

Primary legal sources and court guidance:

• Tennessee Code — Title 32 (Wills and related probate subjects): https://www.tn.gov/content/tn/legislation/tn-code/title-32.html
• Tennessee Courts — Probate program and local probate court contact info: https://www.tncourts.gov/programs/probate

Disclaimer: This article explains general Tennessee probate concepts and common procedures but is not legal advice. Laws change and every case is different. Contact a licensed Tennessee probate attorney for advice tailored to your situation.