What To Do When You Can’t Find Your Loved One’s Will

The death of a loved one is inherently challenging, but the situation grows more complex when you know they made a Will but you can't find it. Idaho law, however, provides a pathway for handling such scenarios. This post will guide you through the process of probating a lost Will in Idaho.

Idaho’s Approach to Lost Wills

The good news is that, in Idaho, you can still probate (legally process) a Will even if you can't find the original. In fact, even if you can’t find any physical copy of the Will at all, as long as you have strong evidence about what the Will said, you can still submit it to probate.

Overcoming the Presumption of Revocation

The initial hurdle in probating a lost Will is addressing the "presumption of revocation." This legal principle assumes that if a Will was last known to be in the possession of the person who died, but is now missing, the deceased may have intentionally destroyed the Will with the intention of revoking it. Don’t worry, you can overcome this presumption with appropriate evidence.

Establishing Non-Revocation

To counter the presumption of revocation, you'll need to present compelling evidence. This might include:

• The deceased and the beneficiaries named in the Will were still on good terms
• The deceased said they hadn’t changed their mind about what was in the Will
• Someone who didn’t like what was in the Will had access to it and might have destroyed it. But note that courts are generally cautious about inferring unauthorized destruction of a Will, as this would imply criminal activity.

Proving the Will’s Contents

Once you've overcome the presumption of revocation, the next step is to establish the Will’s contents. This process is more straightforward if you have a copy of the Will. In the absence of a copy, you'll need to provide substantial evidence of the Will’s provisions. Statements made by the deceased will not be enough on their own. The most persuasive testimony typically comes from the attorney who drafted the Will or witnesses familiar with its contents.

The Dead Man’s Act: A Potential Complication

An additional factor to consider is Idaho's Dead Man's Act. This statute can limit admissible testimony regarding conversations with the deceased. While this may complicate the process, an experienced probate attorney can help navigate this potential obstacle.

Conclusion

While probating a lost Will in Idaho presents challenges, it's far from an insurmountable task.  The key points to remember are:

1. You can probate a lost Will in Idaho
2. You need to show it wasn’t destroyed on purpose
3. You need to prove what was in it

Every situation is different, so it’s a good idea to talk to a lawyer who knows about Idaho probate law. Our office can  help guide you through the process and help you gather the right evidence to present your case to the court.