Lost Wills In Ohio Probate

What Exactly Is a Lost Will Under Ohio Law?

A will is lost under Ohio probate law when the original of the will cannot be found.  A will can be lost in a variety of ways, such as being misplaced by the testator, or by being accidently destroyed by fire or flood.  Sometimes a will becomes lost when a bad actor takes the will because they are unhappy with its terms.

Can A Lost Will Be Admitted To Probate In Ohio?

Yes, a lost will can be admitted to probate in Ohio.  Section 2107.26 of the Ohio Revised Code governs the admission of lost, spoliated, or destroyed wills to probate and states:

When an original will is lost, spoliated, or destroyed before or after the death of a testator, the probate court shall admit the lost, spoliated, or destroyed will to probate if both of the following apply:

(A) The proponent of the will establishes by clear and convincing evidence both of the following:

(1) The will was executed with the formalities required at the time of execution by the jurisdiction in which it was executed.

(2) The contents of the will.

(B) No person opposing the admission of the will to probate establishes by a preponderance of the evidence that the testator had revoked the will.

Therefore, in order to admit a lost will to Ohio probate, the proponent of the will must establish compliance with testamentary formalities under Ohio law, and the contents of the will.

How Do You Prove The Contents Of A Lost Will In Ohio?

In order to prove the contents of a lost will in Ohio, the proponent of the will must present evidence of what the will says.  This is most often accomplished by providing a signed copy of the will.  Witnesses to the execution of the will can also testify to the contents.

Who Gets Notice Of The Hearing To Admit A Lost or Destroyed Will?

Before a lost will can be admitted to probate, the party seeking to prove the will must give written notice by certified mail to the following people:

  1. The surviving spouse
  2. All persons who would be entitled to inherit from the testator under Chapter 2105 of the Ohio Revised Code if the testator had died intestate
  3. All legatees and devisees that are named in the will
  4. All legatees and devisees that are named in the most recent will prior to the lost, spoliated, or destroyed will that is known to the applicant or in the most recent will prior to the document that is treated as a will if the most recent will is known to the applicant.

 

The notice requirement can be found in Ohio Revised Code § 2107.27.

Evidence That The Testator Revoked The Lost Will

Even if the proponent of the lost will establishes the proper execution of the will and its contents, any other interested person can attempt to establish that the testator revoked the will.

The person opposing the admission of the lost will to Ohio probate must establish by a preponderance of the evidence that the will was revoked by the testator.  We have written about the revocation of wills under Ohio law here.

Often an Ohio testator will leave the original will with the drafting attorney that prepared the will.  This prevents the will from being accidently misplaced by the testator.

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