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California Probate: What If The Will Is Lost?

When opening a California probate (in Los Angeles Superior Court, for example) believing that the will is lost, there’s a rebuttable presumption that it was destroyed. What this means is that the court will presume that the person who died destroyed the will.

But, to probate a lost will you may introduce evidence that the will was not destroyed. The sort of evidence that is allowed must satisfy the probate court that the will wasn’t destroyed. If the evidence suggests that the will wasn’t destroyed, then it will be admitted to probate. For example, you look for a copy of the will and any reason as to why that copy should be valid.

California Probate Code 6124 says that: “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. This presumption is a presumption affecting the burden of producing evidence.”

Let’s assume there’s no copy, and that the California will is just lost. Most likely what’s going to happen is the property will probably pass intestate, meaning it will go equally to whomever are the natural heirs or lineal descendants.

For probate help, call Mitchell A. Port at (310) 526-3433.

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