Yes, a lost will can be admitted to probate under Illinois law.
What Is a Lost Will?
A lost will is an original will that cannot be found. Therefore, if you have found only a copy of the decedent’s will, the will is lost. If you know that decedent executed a will, but cannot even find a copy of the will, the will is also considered lost.
Illinois Law Presumes That a Lost Will Has Been Revoked
If the original will cannot be found after the decedent’s death, Illinois law presumes that the decedent revoked the will before their death. We have written about how to revoke a will in Illinois here.
If a beneficiary or other interested person petitions to admit a copy of the lost will to Illinois probate, they must rebut the presumption of revocation by clear and convincing evidence.
What Happens If You Cannot Find an Original Will?
If the original will cannot be located, then interested parties can petition the Illinois probate court to admit a copy of the lost will to probate.
The Illinois probate court will sometimes allow the admission of a copy of the lost will to probate if the beneficiaries and the heirs at law agree to have the copy admitted. Agreeing to have a copy of the lost will admitted to probate makes sense when the beneficiaries or legatees under the will are the same people and take in the same proportions as they would under Illinois intestacy law.
How Do You Overcome The Revocation Presumption And Prove a Lost Will In Illinois?
In order to get a lost will admitted to probate in Illinois when admission of the will is contested, the parties must prove that, even though they do not have the will, the will existed and is valid. To do this, the beneficiaries can:
- Present evidence that the decedent did not revoke or intend to destroy the will. Perhaps a fire or natural disaster destroyed decedent’s important papers.
- Prove that the testator had created a valid will under Illinois law, but that it cannot be found after a thorough search. Read How To Find Out If Someone Has a Will.
- Prove the contents of the will (what the will said). This is easier when the beneficiaries have found a copy of the will.
- Prove that the will was destroyed AFTER the decedent’s death. This scenario might take place where a disgruntled heir finds the will and does not like its terms.
Basically, in order for a beneficiary to probate a lost will under Illinois law, the beneficiary must be able to show that a will existed, and that the decedent did not intend to revoke the will.
How Can You Prevent Your Will From Becoming Lost?
There are several things that a testator can do to prevent their will from being a lost will:
- Tell your family where you keep the original will;
- Keep the original will in a secure location, such as the drafting attorney’s office or in a safe deposit box;
- Do not leave your will laying around with other papers so that it could carelessly be misplaced or thrown away.