What Happens in Massachusetts When a Will Cannot Be Found?

In Massachusetts, a lost or misplaced will can present many problems for the family of the deceased. Losing a will may create lengthy and costly litigation among family members who each claim the estate of the deceased. Contentious litigation may drive a wedge through the family and could prevent the deceased’s true intentions from being carried out. As an estate planning specialist, Attorney Troy Sullivan can work with you to draft an effective estate plan and ensure that your wishes are carried out.  This will save everyone who has suffered the loss of the deceased from the stress and effort of attempting to prove what the person would have wanted.

Even though a will cannot be found, it can still be probated, although it is not a simple process. Under the Massachusetts Uniform Probate Code (MUPC), the proponent, or the party asking a court to probate a will, has the burden of proving the contents of the will. According to the MUPC, a formal petition for probate must be accompanied by the original, signed will or by an authenticated copy if the original will is not already on file in the courthouse. If the petition is not accompanied by the will or authenticated copy probated in another jurisdiction, then the petition must include the language of the will along with a statement that the will is “lost, destroyed, or otherwise unavailable.”

Trying to recreate the contents of a lost document is obviously fraught with problems such as inaccurate recitation of the will contents, fraud, or misrepresentation. Unless all the potential heirs agreed that the petition accurately recited the will contents, one or more of the potential heirs likely will file objections to the petition.

The potential heirs who object to the petition for the probate of a lost will have the upper hand under Massachusetts law. The law presumes that a lost will has been destroyed by the deceased with the intent of revoking it. The presumption may be rebutted by evidence to the contrary. The proponent of the lost will must prove by a preponderance of the evidence, i.e., satisfying the burden that the alleged facts are more likely than not, that the deceased had a will or access to the will and did not destroy the will with the intent of revoking it.

Whether the evidence offered by the proponent of the lost will is sufficient is dependent on the specific and unique facts of each case. Factors that a court can consider when determining if it is likely that the deceased did not intend to destroy or revoke the will are:

·       Whether there is evidence that the lost will was executed with the formalities required to execute a will;

·       Whether a copy of the original will was found;

·       The competency of the decedent and the timeframe between when the will was originally signed and the date of death.

As with any lawsuit, the judge will also consider the credibility of the witnesses when they testify to determine truthfulness, bias, and motivation to lie. If, based upon the court’s analysis of all of the facts, the proponent fails to rebut the presumption that the decedent destroyed the lost will, then the decedent’s estate will pass according to Massachusetts’ intestate succession laws.

The testator can keep the will in a bank safety deposit box or in a fireproof safe in the home. A recommended practice is to notify trusted family members where the will is being kept for safe keeping and making certain your family has access to that location in the event of the death of the testator.

Troy Sullivan, Massachusetts Estate Planning Attorney

Contact a Trusted Estate Planning Attorney for Further Information

A trusted estate planning attorney from The Sullivan Firm, P.C. can help you avoid the stress that is placed on your loved ones when a will is lost. Call Attorney Troy Sullivan today at (978) 325-2721.