To probate a Last Will and Testament in Michigan, as in other states, the original will has to be presented. What happens if the original will cannot be found after someone dies? In some cases, the probate court may allow a copy of the will to substitute for a lost or accidentally destroyed will. Each case will be decided by the court based on the specific facts of the situation.
Michigan Laws for Lost or Destroyed Wills
The Michigan Estates and Protected Individuals Code includes provisions that apply to a case involving a lost or accidentally destroyed will: A petition for formal probate that is not accompanied by the original will must include a statement that the will is lost, destroyed, or otherwise unavailable. The petition also must set forth the contents of the will. In addition, the person claiming that the original will was lost or accidentally destroyed has to prove a number of facts to the satisfaction of the probate court, including that the original will existed and that it was executed as required by law. Most often, a copy is provided to the court to demonstrate the contents of the will, as well as its existence and execution.
A different provision of Michigan law states that destruction of a will by the person making it effectively revokes the will. As such, when the original will was known to be in the possession of the decedent, and it cannot be found, there is a rebuttable presumption that the decedent intentionally destroyed the original of the will in order to revoke it. If a copy is presented to the probate court, the petitioner will have to demonstrate that the decedent did not intend to revoke the will and would not have destroyed the original to accomplish revocation. The decedent’s own statements can be used to establish that fact.
The probate court will weigh all of the facts and circumstances in making the determination whether to allow a copy of a will to be probated when the original will is unavailable. Probate courts decide each case on the specific circumstances involved. In some cases, Michigan probate courts have allowed a copy to be probated. In other cases, they have not permitted probate of a copy of a will.
What To Do When You Can’t Find Your Original Will
In light of the uncertainty of what can happen when an original will cannot be produced in probate court, safeguarding your original will and estate documents is extremely important. Many people store them in a secure location at home or in a bank safe deposit box. It is advisable to make sure that someone else — like your designated personal representative — knows where your original will is stored.
In the event you cannot find your original will and estate documents, the best and safest thing to do is execute another will or estate plan. Otherwise, you run the risk that your heirs will not be able to demonstrate the validity of your will or prove that you didn’t destroy it with the intention of revoking it. If that happens, your estate will pass under Michigan’s laws of intestate succession.
If You Need Help With a Lost or Destroyed Will
If you are facing a situation involving a deceased family member’s lost or missing original will, our BRMM probate litigation attorneys can help you sort through the circumstances to determine the best course to pursue. If you cannot find your own original will or estate planning documents, BRMM’s estate planning attorneys are here to make sure you have a valid replacement will or estate plan. Periodically reviewing your estate plan is always a good idea, and you can use this opportunity to make sure your plan is current and provides the best possible protection for your heirs.
For more than 40 years, we’ve been helping clients throughout southeastern Michigan. Call us at (248) 213-9514 or complete our online form to set up a free initial consultation.