If an original will can’t be found after a person’s death, it creates problems. Only an original will can be filed to open an informal probate with no court hearing. Probate is necessary to distribute property not jointly owned; or if the real estate equity was over $100,000 or personal property over is $75,000.
Arizona state law presumes that if the original will last seen in the possession of the testator(person who made the will) cannot be found after the testator’s death, then it is presumed to be revoked. The presumption can be rebutted by evidence of the testator’s intent in a hearing in front of a judge.
For proving the contents of a valid and unrevoked will, evidence such as a copy of the will and testimony of a witness that it is a true copy is sufficient. If no copy exists, the valid and unrevoked will contents can be proved, but with more difficulty.
Greedy relatives may contest the purported will and make the decedent’s personal representative defend the estate. Revocation is not always easy to disprove. Testimony of witnesses or a paper trail can show the intent of the testator. Court hearings can be unpredictable. Judges have to weight the evidence and may not rule in the testator’s favor. Litigation is expensive, unpleasant and emotionally draining for all parties involved.
If a court finds that a will was revoked, then property would pass according to state law. If the decedent had a spouse, then it wouldn’t make much difference, because most married people have jointly owned property, which passes automatically to the joint owner. If it is a second marriage and children from the first marriage exist, then the spouse gets one half of the separate property and none of the decedent’s one-half community property. If the decedent was single with no children and wanted to give to a friend or a partner, then intestate laws would give property to the decedent’s relatives instead. The friend or the partner may have been the person that they were the closest to. The property could still end up going to someone who may have had little contact with the decedent for many years.
So if you can’t find your original will, you need to make a new one. A lot of aggravation and expense can be avoided with an original document put in a safe place where it won’t burn up, disappear or be stolen. Plus, the relative that you despise won’t get your estate.
