Is it Possible to Probate a COPY of a Will Without the ORIGINAL in California?

One of the frustrating aspects of handling a close relative’s estate after they die is trying to find all of the essential financial and legal documents. You might find the deceased person’s will, but it might be quite old, making you wonder if it was revoked and replaced by a later will or trust. Sometimes, all that you can find is a copy of the will. The original might be in a safe deposit box somewhere or in a lawyer’s office.

Is it possible to probate a copy of a will without the original in California? This situation is tricky, so it would be best to seek the advice of a California estate planning attorney on how to proceed.

The General Rule in California When You Cannot Find the Original Will Document

Most states follow the general rule that the court will presume that the original will was destroyed or revoked if the family or person administering the estate cannot find the original document. California Probate Code § 6124 (CA Prob Code § 6124 (2020)) lays out how California approaches this issue:

“If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.”

Like many other legal presumptions, however, this presumption is rebuttable. In other words, it might be possible to convince the probate judge that the decedent did not destroy the will and that the copy you found is, indeed, the most recent will of the deceased, and was not revoked or modified by any later wills, trusts, or codicils.

What Happens if the Judge Refuses to Accept the Copy of the Will

If the judge is not convinced that the copy of the will accurately represents the decedent’s actual final wishes, the court may find that the deceased person died intestate. Dying intestate means that a person did not have a valid will or trust at the time of death.

In that event, California’s laws of intestacy, not the decedent, will decide who gets the deceased person’s estate and in what proportions. Here are a few things you might want to know about intestate succession in California:

  • Intestacy can apply to a deceased person’s entire estate or any portion of an estate that does not get distributed through the decedent’s will, trust, or another legal device like making a bank account “payable on death” or naming someone as the beneficiary of a life insurance policy.
  • The intestate share of a surviving spouse in the decedent’s community property is half of the community property that the decedent owned.
  • If the intestate deceased person did not have any surviving children or other issues, or any surviving parents, siblings, or issue of a deceased sibling, the surviving spouse may receive the entire intestate estate.

A California estate planning attorney can help you deal with the many situations that can come up during the administration of an estate, whether the decedent left a valid will or trust or died intestate. Contact our office today for a free consultation.

Loew Law Group services clients through San Mateo County including the cities of Belmont, Burlingame, Foster City, Hillsborough, Redwood City, and San Mateo, as well as all Bay Area counties and throughout California.