What happens if the original copy of a will is lost?
A copy can sometimes be probated. But if the original was in the will-maker’s hands, some states presume it was destroyed on purpose.
There are two very different situations behind this question, and the law treats them differently. If the original was with a lawyer, a bank or a court and went missing there, that is an evidence problem. If the original was in the will-maker’s own possession and cannot be found after death, at least one state starts from the assumption that they destroyed it deliberately — and your family has to argue their way out of it.
Which situation are you in?
Before anything else, work out where the original was last known to be. The answer changes what the court starts from.
| Where it was last held | What the law starts from | What has to be proved |
|---|---|---|
| The will-maker's own possession | In California, a presumption that they destroyed it with intent to revoke | Enough evidence to rebut the presumption, plus the will's contents and valid execution |
| A lawyer, bank, or third party | No presumption of revocation on the California wording — the will was not in the testator's hands | The will's contents and that it was validly executed |
| Deposited with a probate court | The court has it; this situation should not arise | Nothing — the original is produced |
California: the presumption you have to argue against
California Probate Code § 6124is the sentence that makes this question serious: “If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it.”
Three conditions have to line up for it to apply: the will was in the testator’s own hands, they were competent until death, and neither the will nor a duplicate original turns up. Break any one of them and the presumption does not start.
New York: the three-part test for probating a lost will
New York writes the requirements out as a checklist. SCPA § 1407 says a lost or destroyed will may be admitted to probate only if:
| # | What must be established | What that means in practice |
|---|---|---|
| 1 | “It is established that the will has not been revoked” | Evidence about what happened to the paper, and about the will-maker's intentions |
| 2 | “Execution of the will is proved in the manner required for the probate of an existing will” | The signing and witnessing has to be proved to the same standard as any other will |
| 3 | “All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” | This is where a photocopy earns its keep — but it has to be proved true and complete |
Requirement three is the reason to keep a clear copy and to keep it somewhere separate from the original. It does not replace the original, but it is one of the two routes the statute accepts for proving what the will actually said.
Who proves this, and at whose expense
Somebody has to bring the case, and the cost normally falls on the estate. That is the practical cost of a lost original: not that the will necessarily fails, but that proving it becomes a contested proceeding rather than a filing.
What to do right now if an original is missing
- Check whether it was deposited with a court. If the will-maker lived in a state with a deposit procedure, call the county probate court. Ohio, for example, keeps deposited wills sealed until delivery to a person entitled to receive them (Ohio Rev. Code § 2107.07).
- Check whether it was already filed.After a death the custodian may already have handed it in — Florida requires deposit with the clerk within 10 days (Fla. Stat. § 732.901), California within 30 (Cal. Prob. Code § 8200).
- Ask the drafting firm. Even where a firm no longer holds originals, it may hold a conformed copy or a file record of what was signed and who witnessed it.
- Find the witnesses.New York’s test can be met by two credible witnesses to the contents. Their names are on the copy, if you have one.
- Stop searching alone. This is the point to bring in an attorney licensed in the state where the estate will be administered. The procedure differs by state and the evidence you gather early is what the case rests on.
And for the version of this problem you can still prevent, see where to store a will.
Sources
Every rule and figure on this page was read directly from the source below on the date shown. Statutes are amended; check the current text before you rely on it.
- California Probate Code § 6124 — California. Read 2026-08-21.
- New York Surrogate's Court Procedure Act § 1407 — New York. Read 2026-08-21.
- Florida Statutes § 732.901 — Florida. Read 2026-08-21.
- Ohio Revised Code § 2107.07 — Ohio. Read 2026-08-21.
- California Probate Code § 8200 — California. Read 2026-08-21.
Common follow-up questions
Can a photocopy be used as the will?▾
Sometimes, through a specific court process, and it is harder than filing an original. New York allows a lost or destroyed will to be admitted only if three things are established: the will was not revoked, execution is proved as for an existing will, and every provision is clearly and distinctly proved by at least two credible witnesses or by a copy or draft proved true and complete.
Does the presumption of destruction always apply?▾
No — it depends on the facts and on the state. California's version applies where the will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original can be found. It is a presumption affecting the burden of producing evidence, which means it can be rebutted with proof.
What if the original was with the lawyer, not the deceased?▾
The California presumption is written around a will last in the testator's own possession, so a will held elsewhere does not fit that trigger. That does not make proving it easy — you still have to prove what the will said and that it was validly executed — but the starting point is different.
What happens if no will can be proved at all?▾
The estate is treated as though there were no will and is distributed under the state's intestacy rules, which set a fixed order of relatives regardless of what the missing document said. That outcome is exactly what the effort to prove a lost will is trying to avoid.
How do I stop this happening in the first place?▾
Storage that is both durable and findable. Some states let you deposit the original with the probate court while you are alive — Ohio charges $25 and gives you a certificate of deposit. Failing that, tell the named executor where the paper is. Both are free or close to it.
Please read
This is general information, not legal advice, and reading it does not create an attorney-client relationship. We are not a law firm and no one here is your lawyer. Wills and estates are governed by state law, and the rules differ from one state to the next — a deadline or a form that is right in Florida can be wrong in Ohio. The statutes quoted on this site are the ones we read, cited by name so you can check them yourself. Before you sign, store, change or file anything, talk to an attorney licensed in your state, or start with your state bar’s lawyer referral service or your state court’s self-help center. More about who we are.