When the original will cannot be located after someone dies, Florida probate law does not treat it as a minor problem. Instead, the court starts from a legal presumption that the will was intentionally revoked.
This presumption surprises families and often turns routine probate into contested litigation. While Florida law allows lost or destroyed wills to be admitted in limited circumstances, the burden of proof is high and the failure rate is significant.
This article explains how Florida courts handle missing original wills, what must be proven, and why many lost-will cases fail.
Florida’s Presumption: A Missing Original Was Revoked
If the original will was last known to be in the testator’s possession and cannot be found at death, Florida law presumes:
- The testator destroyed the will
- The destruction was intentional
- The will was revoked
This presumption applies even when:
- Everyone agrees the testator “would never have done that”
- A copy of the will exists
- The outcome feels unfair
Florida probate courts require evidence, not assumptions or family agreement.
A Copy of the Will Is Not Enough by Itself
Finding a photocopy, scan, or digital version does not automatically save the will.
A copy:
- Does not overcome the presumption of revocation
- Does not prove the will was valid at death
- Does not avoid probate litigation
Copies are only useful if additional legal requirements are met.
What Must Be Proven to Admit a Lost or Destroyed Will
To enforce a lost or destroyed will in Florida, the person offering the will must prove two separate elements.
1. The Will Was Properly Executed
The court must be satisfied that the will:
- Was signed by the testator
- Was signed in the presence of two witnesses
- Complied with Florida execution requirements
This typically requires:
- Testimony from subscribing witnesses
- Affidavits
- Testimony from the drafting attorney
If witnesses cannot be located or do not recall the signing, the case weakens quickly.
2. The Exact Contents of the Will
Florida courts require proof of the will’s specific terms, not general intent.
Acceptable evidence may include:
- A true copy of the will
- Drafts that match the executed version
- Attorney records
- Consistent witness testimony
Vague recollections or partial drafts are usually insufficient.
Overcoming the Presumption of Revocation
Even if execution and contents are proven, the presumption of revocation must still be rebutted.
Courts look for evidence such as:
- Accidental destruction (fire, flood, disaster)
- Theft or loss outside the testator’s control
- Proof the testator did not have access to the will
- Consistent statements reaffirming the will shortly before death
This is the hardest hurdle. Most lost-will cases fail here.
When Lost Will Claims Commonly Fail
Florida courts frequently reject lost-will petitions when:
- The will was kept at home and simply “can’t be found”
- Multiple people had access to the will
- Witnesses are unavailable or inconsistent
- The contents are disputed
- The copy does not match testimony
Courts are skeptical by design. Finality matters.
What Happens If the Lost Will Is Not Accepted
If the court refuses to admit the lost or destroyed will:
- A prior will may control, if one exists
- Otherwise, the estate passes under Florida intestate law
This often changes inheritance dramatically and fuels further litigation.
Lost vs. Destroyed Wills: Same Legal Problem
Florida treats lost and destroyed wills similarly.
The key issue is intent:
- Accidental loss may be excusable
- Intentional destruction equals revocation
The burden of disproving intent rests entirely on the person offering the will.
Why Missing Originals Trigger Probate Litigation
Lost-will cases invite disputes because:
- The law favors revocation
- Beneficiaries’ interests conflict
- Evidence is indirect
- Emotions run high
- Stakes are often significant
These cases rarely remain uncontested.
Why DIY and Online Wills Are Especially Vulnerable
Lost-will problems occur more often with:
- Online wills
- DIY documents
- Home-stored originals
- No attorney retention of copies
- Poor execution records
When these wills disappear, recovery is far more difficult.
How Proper Planning Prevents Lost Will Disasters
Most lost-will cases are preventable through:
- Secure storage of originals
- Informing executors where the will is kept
- Using self-proving affidavits
- Periodic estate plan reviews
- Professional custody when appropriate
Probate courts fix paperwork failures — they do not forgive them.
Bottom Line
In Florida probate, a missing original will is not a technicality — it is a legal presumption of revocation. Overcoming that presumption requires strong, specific evidence, not family consensus or good intentions.
Most lost-will cases fail because proof disappears with the document itself.
