Without a will, inheritors relinquish control of the distribution of a parent’s assets to Virginia state law. Families increase the odds of nasty disputes without clear documentation of the decedent’s wishes.
What can be done if estate planning documents were prepared but are later lost? Can a copy substitute for the original forms?
The importance of preserving a will
A study from Caring.com relates that only 40% of American adults have created a will or living trust. Even when a will is executed, challenges may arise if a person does not draw the testament up correctly or ensure its preservation. For this reason, many individuals seek professional assistance to prevent future problems.
How to probate a will
Probating a will means establishing the validity of the document. The burden of proof for probating a will is high. Someone wishing to probate a copy of a will must file a lawsuit in the circuit court.
Virginia law dictates that a missing will presupposes that the testator (the will’s creator) destroyed the testament intending to revoke it. Only clear and convincing evidence can establish a copy as valid.
The possibility exists that the testator expressed desires regarding the execution of the will that can be shared in court through testimony or a recording. Possibly the testator provided a copy to another trusted individual or stored a duplicate somewhere. It is uncommon to establish a misplaced will when no document is provided, though not impossible.
The death of a parent is stressful enough. Families should take steps to leave behind clear instructions for estate distribution.