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Attempting to Probate a Copy of a Will

This blog will explore the possibility of probating a copy of a Decedent’s Will if the original document cannot be located. Typically, the County Surrogate will only accept for Probate an original of a Decedent’s Last Will and Testament. If for some reason an original of a Decedent’s Will cannot be located, a party may apply to the Court to Probate a copy of the Decedent’s Will.

Prior to undergoing this process, however, there are several things a party must consider before attempting to Probate a copy of a Decedent’s Will. The first thing that a party must consider is that there is a presumption that the Decedent purposely destroyed his or her Last Will and Testament if the original cannot be located. As such, if an action is filed to probate a copy of the Decedent’s Last Will and Testament, the validity of this document must be demonstrated by clear and convincing evidence. This standard of evidence is more than a preponderance of evidence, however, somewhat less than beyond a reasonable doubt. It is important to understand this stringent burden of proof, as if there are opponents to probating a copy of the Last Will and Testament it should be known well in advance.

If all the heirs to an Estate agree that a copy of the Last Will and Testament should be probated, then in that event, the Court proceeding will likely be very smooth and the copy of the Last Will and Testament should be admitted to Probate. On the other hand, if one or more potential beneficiaries of the Estate object to probating the copy of a Last Will and Testament, the proponent of the copy must demonstrate by clear and convincing evidence that the Decedent either lost or misplaced his/hers Will and did not intend to revoke or destroy same. This is a difficult burden to carry, and thus, it is good to consider probating a copy even makes sense. In lieu of probating a copy of a Will there are other alternatives.

It should be considered prior to attempting to Probate a copy of a Last Will and Testament if the Estate were to pass by intestacy whether or not the result is equally desirable or even more desirable then probating a copy of the Will. This all depends upon how the previous Will intended to distribute the Estate, as compared to how the Estate would be distributed under intestacy. The process would also be somewhat simpler and would not involve the legal process in attempting to Probate a copy of the Will. As such, it is important that these issues be considered prior to attempting to Probate a copy of a Decedent’s Will.

The above blog provides merely guidance as to what may happen should a Last Will and Testament of the Decedent not be discovered, but instead, merely a copy. 

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About this Author

Paul Norris, Stark and Stark Law, Probate Litigation Lawyer, Construction Attorney, New Jersey
Shareholder

Paul W. Norris is a Shareholder and a member of the Firm’s Litigation Group. Mr. Norris’ areas of practice include: Probate Litigation; Construction Litigation; Commercial Litigation; and Criminal and Municipal Court representation. Mr. Norris has an extensive and growing Probate Litigation practice, which concerns either defending, or initiating Will contests on behalf of beneficiaries and purported beneficiaries of an Estate as well as related litigation. He has both prosecuted and defended actions successfully in this regard, and also serves as a Court appointed...

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