Detailed Answer

This article explains what typically happens in Virginia if a last will and testament cannot be located or appears to have been destroyed. It summarizes how Virginia courts approach lost or destroyed wills, what evidence the court will require, the practical consequences for the estate, and steps you can take. This is educational information only and is not legal advice.

Which law applies

Virginia handles wills and probate under Title 64.2 of the Code of Virginia (Administration of Estates). For the statutory framework see: Va. Code Title 64.2 — Administration of Estates. The probate court (the circuit court in the decedent’s domicile) decides whether a lost or destroyed will can be admitted to probate.

Basic rule — lost or destroyed wills can be admitted, but you must prove them

If the original will cannot be produced because it was lost, accidentally destroyed, or intentionally destroyed by someone other than the testator, the court may still admit the will to probate. However, the person seeking admission (the proponent) bears the burden of proving two things:

• That the document was a validly executed will (i.e., signed in the required manner and witnessed as Virginia law requires); and
• That the original was not revoked by the testator (that disappearance or destruction was not the result of an intentional revocation by the testator).

The usual standard the court applies is clear and convincing evidence that the document was the deceased’s last will and that it was not revoked.

How Virginia courts treat different scenarios

1) Will is lost (cannot be found)

If the original cannot be located after the testator’s death, the proponent must show the will’s contents and prove it was validly executed. Evidence can include a carbon copy or draft, testimony from the attorney who drafted the will, testimony from attesting witnesses who recall the execution, and other documentary evidence (e.g., a copy kept in a safe, an electronic copy, or notes about the will’s provisions).

2) Will appears destroyed or mutilated

If the original is found mutilated, burned, or torn, Virginia law recognizes a presumption that the testator revoked the will by their own act if the mutilation or destruction occurred while the will was in the testator’s control. The proponent must rebut that presumption with evidence showing the mutilation or loss was accidental or was caused by someone else without the testator’s intent to revoke.

3) Will destroyed by a third party

If someone else destroyed the will after the testator’s death, the court is more likely to admit secondary evidence (copies and witness testimony). If a person wrongfully destroys a will to prevent probate, Virginia courts may permit a copy to be probated and may impose remedies against the wrongdoer.

Evidence the court expects

To prove a lost or destroyed will in Virginia, gather:

• All copies of the will (paper copies, scans, emails) and the version most likely to be the decedent’s final will.
• Affidavits or testimony from the attorney who prepared the will, if any, and from the attesting witnesses who signed the original (they can testify about execution and the testator’s intent).
• Proof of custody and efforts to locate the original (where it was kept, who had access, searches performed).
• Any contemporaneous notes, letters, or documents that confirm the testator’s intent and the disposition of property in the disputed will.
• Evidence explaining loss or destruction (for example, proof that a fire damaged the home and destroyed the will).

Practical outcomes

• If the court admits the copy or other secondary evidence, the will’s terms govern distribution of the estate as if the original were produced.
• If the proponent fails to meet the burden of proof, the estate can be administered as if there is no valid will — intestacy rules then determine who inherits under Virginia law.
• If the court finds the will was revoked by the testator, any earlier will (if available) may govern, or intestacy will apply if no valid earlier will exists.

What to do right away (practical steps)

1. Search carefully for the original: check safe deposit boxes, attorney files, home safes, and wherever important papers were kept.
2. Preserve any copies or drafts you find (photograph or scan them). Do not alter them.
3. Contact the lawyer who prepared the will — they may have a copy or file memo and can provide testimony or an affidavit.
4. Identify and talk to witnesses who signed the original will; ask them to prepare sworn statements describing the execution circumstances.
5. Consult a Virginia probate attorney promptly. They can advise on the evidence you’ll need and can file a petition for probate in the circuit court for the decedent’s domicile.

Example hypotheticals

Hypothetical A: A testator executed a will with two witnesses and left the original with their attorney. After death, the attorney’s office files show the will was returned, but the original cannot be found. The attorney and the attesting witnesses give consistent testimony and a photocopy of the will is available. The circuit court likely will admit the copy if the testimony meets the clear-and-convincing standard and rebuts any presumption of revocation.

Hypothetical B: The original will is found badly burned in the decedent’s home and the decedent had sole access to the home. The court will presume the decedent intentionally revoked the will. The proponent must introduce strong evidence that the destruction was accidental or caused by someone else to overcome that presumption.

Where the case is handled

Petitions to probate a lost or destroyed will are handled by the circuit court where the decedent was domiciled. See Va. Code Title 64.2 — Administration of Estates for the general statutory framework. Local circuit court clerks or a probate attorney can tell you the specific filing process and forms used in your circuit.

Helpful Hints

• Act quickly. The longer you wait, the harder it can be to locate witnesses or evidence of execution.
• Collect contemporaneous documents (emails, drafts, attorney file notes) that show the testator’s intent and the will’s contents.
• Get sworn affidavits from the will drafter and the attesting witnesses; courts rely heavily on witness testimony in lost‑will cases.
• If the original might be in a safe deposit box, do not force entry — consult an attorney to follow the proper legal process.
• If someone may have destroyed the will intentionally, preserve any evidence and notify counsel — the court can consider wrongful conduct when deciding admissibility and remedies.
• Remember that a photocopy alone is not always sufficient; the overall weight of evidence matters.
• If you are a potential beneficiary, seek legal advice promptly to protect your rights during probate.

Disclaimer

This information is educational only and does not constitute legal advice. For advice about a specific situation, contact a licensed Virginia probate attorney who can evaluate your facts and advise you on filing a petition and proving a lost or destroyed will.