What to do when an original will is lost or damaged while being mailed to the probate court

Disclaimer: This is educational information, not legal advice. Consult a Vermont probate attorney about your situation.

Detailed Answer

If the original will is lost or damaged in the mail on its way to the probate court in Vermont, the probate process can still move forward—but you must act quickly and support the will’s contents and validity with strong secondary evidence.

Key legal principles that apply in Vermont are the same general rules used across U.S. probate systems: the court prefers the original signed will but may admit a copy when the original cannot be produced if the proponent proves (1) that the will was validly executed and (2) the original was lost or destroyed without intent by the testator to revoke it. In practice, that means the person asking the court to admit the will must present evidence to satisfy the probate judge that the document is genuine and that the testator did not revoke the original.

Where to start and what to expect:

1. Notify the probate court promptly. Contact the clerk of the probate division where the decedent was domiciled and explain that the original will was mailed but was lost or damaged in transit. Ask about local filing requirements for lost-original petitions and how the court prefers to receive supporting evidence. Vermont’s probate courts are part of the Vermont Judiciary; general probate information is available from the Vermont Judiciary website: https://www.vermontjudiciary.org/.
2. Preserve and collect all mailing evidence. Keep tracking numbers, receipts, mailing labels, photos of the damaged envelope and document, and any correspondence with the carrier (USPS, courier). File a claim or incident report with the carrier and save the claim number and any investigation results. For USPS claims and tracking, use: https://www.usps.com/help/claims.htm.
3. Prepare a petition to admit the copy or a damaged original. In Vermont you or your lawyer will ask the probate court to admit a copy (or the damaged document) in lieu of the original. The petition should explain how the original was lost or damaged and why the loss was not due to the testator’s revocation. The court will tell you the local form or filing process to use.
4. Gather sworn statements and proof of due execution. Attesting witnesses (those who signed the will), if available, should provide affidavits attesting that they witnessed the signing and that the will was the testator’s last will. If an attesting witness is deceased or unavailable, other evidence—such as a copy of the will, communications from the testator describing the will, and testimony from people who knew the testator’s intentions—can help. The court will evaluate the strength of this secondary evidence.
5. Be ready for a hearing. The probate judge may schedule a hearing where you and witnesses testify about execution of the will and the circumstances of the loss or damage. The court will decide whether the copy is admissible. If the court finds insufficient proof, the copy may be rejected and intestacy (distributing the estate under Vermont’s statutory rules) could apply.
6. Consider contested issues. Anyone with an interest in the estate may contest admission of the copy. Common contest bases include allegations that the testator revoked the will or that the copy is a forgery. Good documentary and testimonial evidence reduces the risk of successful challenges.
7. Alternative documents. If there are other signed, contemporaneous documents (for example, a certified copy previously recorded or an earlier executed will), the court may give those documents weight. If the decedent had filed a will for safekeeping with a lawyer or with some courts or institutions, that may simplify matters.

Statutory references and resources: Vermont’s probate and wills provisions are codified in Title 14 of the Vermont Statutes; for the text and to review relevant chapters and sections, see the Vermont Statutes online at: https://legislature.vermont.gov/statutes/title/14. For practical probate procedures and local filing rules, consult the Vermont Judiciary’s probate information: https://www.vermontjudiciary.org/.

Outcome possibilities:

• If the court is satisfied that the copy accurately reflects a validly executed will and that the original was lost or destroyed without intent to revoke, the court can admit the copy and order probate consistent with the will’s terms.
• If the court finds insufficient proof, it may refuse to admit the copy. In that case, the estate could be distributed according to Vermont’s intestacy rules, or an earlier valid will (if any) may control.
• If competing parties raise factual disputes, expect litigation and formal hearings; more and better evidence strengthens the party seeking admission of the will copy.

Helpful Hints

• Act fast. Contact the probate clerk and the carrier right away. Delays make proving what happened harder.
• Save everything from the mailing: envelopes, tracking info, receipts, photos of damage, and emails or letters about the shipment.
• Get affidavits from the attesting witnesses if possible. A sworn statement from an attesting witness saying they saw the testator sign greatly helps.
• Obtain a carrier incident/claim report and keep the claim number and any investigative results.
• If a lawyer prepared the will, contact that lawyer. They often keep a copy and can provide affidavits about preparation, execution, and the testator’s intent.
• Consider hiring a probate attorney in Vermont early. Probate lawyers are familiar with local judges and filing requirements and can prepare a strong petition and witness affidavits.
• Prepare for a hearing. Collect consistent, contemporaneous evidence (emails, text messages, notes) that show the testator’s intent and identify the will as the testator’s final testament.
• Keep beneficiaries and potential heirs informed. Transparent communication can reduce disputes and challenges.

If you want help locating a Vermont probate attorney or need sample affidavits and a checklist of evidence to gather, consider contacting your local probate court clerk or a licensed Vermont attorney for case-specific guidance.