If your Will cannot be found, does it exist?

This happens from time to time – someone contacts our office wanting to update their estate plan, telling us that they did some planning many years ago, but can’t find their documents.In other situations, attorneys sometimes hear from family members of someone who had deceased, but no one can find a Will, though the family was sure their loved one had signed one.Those situations raise an interesting question: If your Will cannot be found, do you even have a Will?

In Georgia, that question is somewhat a paradox, like Schrodinger’s cat thought experiment.Maybe there is a Will, maybe there is not.It really depends upon what is observed when you open the box, or, in this case, the probate case.Let me explain.

Initially, Georgia law presumes an intent to revoke a Will if the original Will cannot be found to be offered for probate after someone passes away.This seems reasonable, because the individual may have torn up the original Will as a way to revoke it, or otherwise destroyed it because it no longer met his or her wishes.This presumption of intent to revoke the Will is set forth in paragraph (a) of O.C.G.A. § 53-4-6.

But, paragraph (b) of that code section provides that a COPY of a Will (meaning not the original Will itself) can be offered for probate provided that it be proved to be a copy of the original (perhaps done by testimony or an affidavit of one of the witnesses to the signing of the Will) AND that the presumption of intent to revoke the Will is rebutted by a preponderance of the evidence. So, if the original Will cannot be found, but a copy is located that can be proven to be a true copy of the original Will executed by the deceased person, the copy can be probated so long as it is proven by a preponderance of the evidence that the person did not intend to revoke the Will.And proving that there was not an intent to revoke the Will may not be simple or easy to do.

So, what does this mean for you if you have gone through the steps to put together an estate plan to meet your wishes, including a Will?It means that you need to keep your original Will in a safe, secure location, protected from theft, smoke, fire and water damage, and you need to make sure that the right people know it exists and are able to access it once you decease.This also means that you control the distribution of copies of your Will to others, maybe even not giving anyone a copy, if there is a chance that you might revoke your Will at some point in the future, including a revocation caused by your signing a new Will with updated instructions.Finally, it may mean that you keep a third-party in the loop, such as your attorney, CPA or financial advisor, as to your estate plan changes, so that, if needed, an independent third-party not inheriting from you in any manner can provide testimony as to your intent with respect to your Will in the event that someone seeks to probate a copy of a Will where the original cannot be found.

Of course, while this topic might be somewhat interesting, it is meaningless to those who have not done any estate planning, as there cannot be a true copy of a Will never actually made.If you have questions about estate planning for your situation, we invite you to contact us to request free information on estate planning in Georgia, or to schedule a consultation to discuss your needs.