If you cannot find the original will after a loved one’s death, probate may still be possible. In California, courts usually prefer the original will, but they may admit a copy if the evidence shows the will was valid, the copy is accurate and the testator did not revoke the original.
When a copy may be used
If the testator last had the will and no one can find it after death, the court may presume that the testator revoked it. The petitioner then needs evidence to rebut that presumption. That evidence can include:
- Testimony or a declaration from the attorney who prepared the will
- Testimony from witnesses who saw the will signed
- Proof that someone stored the original in a known location
- Evidence of a fire, flood, accident or other event that may have destroyed the original
- A copy kept by the drafting attorney or another person
- Notes, emails or letters from the testator about the will
Gathering clear, organized documentation is essential to building a strong case for admitting a copy to probate.
What the court may consider
The probate court may review the evidence to decide whether the copy matches the original will and whether the testator revoked the original. The court may also hold a hearing or ask for more evidence before ruling. Courts are more likely to admit a copy when multiple independent sources of evidence corroborate both the will’s existence and the circumstances of its loss.
Filing a petition with a missing original will
A petition for probate should include as much reliable documentation as possible. Details about who prepared the will, who witnessed it, where someone kept it and what happened to it can all matter. The petitioner should also explain why the copy should count as an accurate version of the original.
A missing original does not automatically prevent probate. But it can make the process harder and more evidence-focused. An attorney can review the available evidence, assess how to address the presumption of revocation and help prepare a petition that gives the strongest possible foundation for admitting the copy to probate.