Detailed answer

This explains what typically happens when an original last will and testament is lost or damaged while being mailed to the courthouse in Virginia, and what steps the personal representative or heirs should take. This is an overview only and not legal advice.

Key legal principles

Virginia law treats an original will as the best evidence of the decedent’s wishes. If the original cannot be produced after the testator’s death, the circuit court that handles probate may still admit a copy or other evidence of the will, but the court will require proof before doing so. If the original was destroyed by the testator with intent to revoke it, the will is invalid. But if the original is merely lost or destroyed without the testator’s intent to revoke it (for example, lost in the mail after the testator signed it and mailed it), that loss or destruction is not treated as a revocation.

The court’s job is to determine two main facts before admitting proof of a lost or damaged will: (1) that the paper was in the testator’s possession at some point and cannot now be produced despite a reasonable search, and (2) that the testator did not revoke the will. To satisfy the court, interested parties typically present witness testimony, affidavits, and copies of the will. The standard of proof needed to admit a lost will is higher than a simple preponderance; Virginia courts require credible, persuasive proof that the original existed and was not revoked.

Common court process in Virginia

1. Notify the clerk of the circuit court where probate would be opened (usually where the decedent lived).
2. If a mailed original was lost or damaged in transit, preserve any tracking numbers, mailing receipts, delivery notices, and communications with the postal carrier or private courier. These documents help show the last known custody of the document.
3. File a petition for probate. If the original is not available, file a petition to admit a copy of the will and provide affidavits or testimony explaining why the original cannot be produced and that it was not revoked. The court will set a hearing and require notice to heirs and interested parties.
4. At the hearing, witnesses who saw the testator sign, who saw the executed original, or who can testify about the mailing or chain of custody should be prepared to testify (or submit sworn affidavits if allowed). The copy of the will is introduced as evidence. The court decides whether the proof is sufficient to admit the copy to probate.
5. If the court admits the copy, the court will treat the admitted copy as the will for purposes of probate and estate administration. If the court refuses admission, the estate may be treated as intestate unless other effective testamentary documents exist.

Damaged originals

If the original arrives but is damaged, bring it to the clerk or the court promptly. If the signature and attestation language remain legible and the court is satisfied the document is the authentic original executed by the testator, the court may admit it despite damage. If damage obscures signature, dates, or witness attestations, the court will likely require additional proof similar to the lost-will procedure.

Practical legal and non‑legal remedies

• File a claim with the postal service or carrier if the will was lost or damaged in their custody. Keep tracking records and any damaged materials.
• Preserve all evidence of mailing and any damaged physical pieces — do not discard them.
• Gather affidavits from the witnesses who observed execution and from anyone who handled the document after execution (for example, an attorney or family member who mailed it).
• If interested parties dispute the will, expect contested hearings; evidence standards and testimony become more important in disputes.

For general statutes and rules that govern wills and probate administration in Virginia, see Title 64.2 of the Code of Virginia: https://law.lis.virginia.gov/vacode/title64.2/ and the circuit courts information page: https://www.courts.state.va.us/courts/circuit/home.html

Helpful Hints

• Act quickly. Contact the clerk of the circuit court where probate would be opened as soon as you learn the original is missing or damaged.
• Preserve mailing evidence. Save tracking numbers, receipts, delivery notices, photos of damaged pages, and any returned material from the carrier.
• Get sworn statements. Ask the attorney who prepared or handled the will, any witnesses to the signing, and anyone who mailed the will to give signed affidavits describing the will’s execution, content, and mailing chain of custody.
• Keep certified copies. If you have a certified copy or a full photocopy of the will, keep it and bring it to the probate hearing. Copies alone may not suffice without supporting testimony, but they are often crucial evidence.
• Notify potential interested parties early. Provide required notice to heirs and beneficiaries so the court record shows you followed procedural rules.
• Consider insurance or carrier claims. If the lost/damaged will was due to carrier mishandling, you may have a claim against the carrier for loss of property; collect and preserve all documentation for that claim.
• Hire a probate attorney. A lawyer can prepare the petition to admit a lost or damaged will, gather the necessary affidavits, and represent you at the probate hearing.
• Don’t attempt to recreate the will after the testator’s death. Re-creating or re-signing a will on behalf of a deceased person has no legal force and can lead to disputes or criminal exposure.

Where to look for more information

• Code of Virginia, Title 64.2 (Wills, Trusts, and Decedents’ Estates): https://law.lis.virginia.gov/vacode/title64.2/
• Virginia Circuit Courts — probate information and local clerk contacts: https://www.courts.state.va.us/courts/circuit/home.html
• U.S. Postal Service claims information (if mailed via USPS): https://www.usps.com/help/claims.htm