Can a will be probated if the original is missing?

Key takeaway

Yes, in Wisconsin, a court may establish a will that is lost, accidentally destroyed, destroyed without the testator’s consent, unavailable but revived under state law, or otherwise missing, upon proof of its execution and validity.

The Wisconsin probate petition must state the will’s provisions. Disappearance alone does not establish validity.

The formal petition when the original is unavailable

In Minnesota, for example, a formal probate petition must state the will’s contents and indicate that it is lost, destroyed or otherwise unavailable. This applies when the original is neither with the court nor accompanying the petition, and no authenticated copy of a will probated elsewhere accompanies it. Other states differ.

In Minnesota, for example, a petitioner who has reason to believe the will was lost or destroyed must include that statement in the formal testacy hearing notice. This is an additional notice requirement, not the complete procedure, and other states differ.

Filing the petition and obtaining admission are separate steps

In Minnesota, for example, formal probate requires expiration of the notice period, proof of notice, any necessary hearing, and findings of death, proper venue and timely commencement. The court determines domicile, heirs and testacy, and formally probates a will found valid and unrevoked. Other states differ.

Personal representative: In Minnesota, for example, a personal representative is a fiduciary who must prudently settle and distribute the estate under the probated, effective will and applicable law. Other states differ.

Intestacy: In Minnesota, for example, intestacy directs property not disposed of by will to statutory heirs after applicable allowances for the spouse or descendants. A will may expressly exclude or limit an heir’s right to inherit through intestacy, and other states differ.

EstatePlanner.com resources to open next

Wills and probate
Use this overview to put the missing document question in the context of the rest of your will review. Bring questions about your original and any copies to the discussion.
Wills and probate records and questions checklist
Use this checklist to organize the records you have before discussing the missing original. Note where you have searched and which versions you found.
Disputes and contests
Open this guide if family members disagree about the missing document. Use it to organize the questions you want to raise about that disagreement.
Estate administration records and questions checklist
Use this checklist to keep the estate’s other records organized while you investigate the missing will. Keep a separate list of questions about the document search.

Frequently asked questions

Can an ordinary photocopy meet the informal application document requirement?

No, in Minnesota, for example, that requirement calls for the original with the court or application, or an accompanying authenticated copy of a will already probated in another jurisdiction. An ordinary photocopy is not that authenticated copy, and other states differ.

Can a witness affidavit help prove execution?

Yes, in Minnesota, for example, if an unopposed testacy petition requires execution evidence, one attesting witness’s affidavit or testimony suffices. If unavailable, other evidence or an affidavit may prove execution, and other states differ.

In Minnesota, for example, the court may decide an unopposed petition on the pleadings if satisfied that the statutory admission conditions are met, or hold an open court hearing and require proof. Execution evidence alone does not establish contents or nonrevocation, and other states differ.

Can the Wisconsin will pass property before probate admission?

No, in Wisconsin, a will must be proved and admitted to probate, or informally admitted under chapter 865, before it passes property.

Sources

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