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All Is Not Lost: When a Will is Lost or Destroyed

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Aunt Eunice kept all of her important papers in an old filing cabinet in her basement. She had separate files for her deed, car title, life insurance policy and original last will and testament.  Her niece, Jenna, was listed in her will as the sole beneficiary. Aunt Eunice also listed Jenna as the executrix of her will.  Jenna had a key to the cabinet in the event she had to retrieve the documents.  

Sadly, Aunt Eunice passed away after a short illness.  Her passing was marked by several days of torrential rainfall.  Like many of the houses in the neighborhood, Aunt Eunice’s basement was flooded.  When Jenna went to retrieve her aunt’s will, she found the cabinet under several feet of water.  Aunt Eunice’s will was illegible.  It was just a pile of mush.  How could Jenna administer her aunt’s estate if the will was destroyed?  

In our practice, we often receive calls from clients who have discovered that their relatives’ wills are either lost or destroyed.  All is not lost, however.  Ohio law provides for specific procedures in such an occasion.

A probate court in Ohio must admit a lost or destroyed will for an estate administration if the following conditions are met:  The person seeking to admit the will into court must establish by clear and convincing evidence that the will was executed properly as well as the contents of the will.  The court also must be satisfied the decedent did not revoke the will prior to death.

To satisfy these conditions, the party seeking to admit the will must give written notice to the surviving spouse of the decedent and to all people who would be entitled to inherit from the decedent.  Likewise, all named beneficiaries in any prior known will must be notified.

The court will then hold a hearing when witnesses will give testimony relevant to the will and the decedent’s intentions.  If the court is satisfied that the conditions have been met, it will issue an order setting forth the contents of the will as near as can be ascertained. Thereafter, the court will treat the established will like any other will admitted for probate administration.

Jenna’s predicament is a cautionary tale.  At the very least, original wills should be kept in a secure, fireproof and waterproof safe or cabinet.  Wills should not be kept in a bank safety deposit box unless there is another person who would be able to legally access the box upon the death of the testator.  When drafting your will, ask your probate attorney the best way to safeguard it.  That way, you are sure that your intended bequests will be followed.

Michael Laribee is a partner in the Medina law firm Laribee & Hertrick, LLP.  This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights. Have legal questions? Contact Attorneys in Medina, Ohio at Laribee & Hertrick, LLP.


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