What Happens if a Will is Lost or Destroyed?

Jun 15, 2019Estate Planning

This is a great question that creates many legal issues. I will address the easiest issue first.

What happens if a Will is destroyed? According to Idaho Code § 15-2-507, when a will is “burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction” the destroyed Will is revoked. In other words, if the will was destroyed on purpose by the person that created it, the will is void. This is a very practical rule if you think about it, because if the will does not exist, it would be very hard to enforce wishes that are not written down. The result of this situation is without a valid will, Idaho Law then dictates the distribution of your property.

Where the destruction of a will gets very complex arises from a situation where the will was destroyed for fraudulent or unlawful purposes. This usually means that another person destroyed the will without permission from the person who created the will. This is a serious problem. If you believe the will was destroyed, then I would encourage you to take advantage of our free consultation to discuss the facts of your situation.

What happens if a will is lost? This is another problem I am asked about often. The answer to this question changes on the facts of the situation. For example, in some situations, the original cannot be found, but a copy of the will is found. In some situations, no will can be found at all, but individuals or family members remember that there was a will. Another situation can be where the will was placed in storage, but the will can no longer be found. Where a lost will depends of facts, it would be impossible to go through every factual situation. However, for example purposes, when a person comes to me and states that there is a lost will, then the first order of business is to find the will.

Finding a lost will, as you can imagine, is very difficult. Where I start is to check the will registry to see if the will was registered with the State of Idaho. If the will is registered with the State of Idaho, then the search is over and we know that there is a valid will. If the will registry turns up nothing, I will also contact the attorney used by the person who has passed to see if the attorney has a copy or the original will. If the attorney of the deceased does not have the will, then I will encourage the individual to search through all the records of the deceased person, including documents in storage. There are many other avenues of investigation, but if all investigation routes fail, then the blunt truth is that the will is lost. If a valid will cannot be located, the court will look to Idaho law to determine how the property of the deceased should be distributed.

If you have further questions, please schedule a free consultation with our estate planning attorneys. Hayden Law is available to discuss your options and answer your questions.

Jonathon Frantz

Jonathon Frantz


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