How to Navigate Probate When the Original Will Is Missing in California?

When a loved one passes away in California, one of the first questions families often face is: “Where is the original will?” If all you have is a copy of the will—and the original is lost or missing—it can create major legal complications during probate.

However, California law does allow for the probate of a lost or destroyed will, but the process is more complex and requires specific legal steps under California Probate Code §8200 and related statutes.

In this article, we explain what happens when the original will cannot be found and how to proceed with probate using only a copy.

Why the Original Will Is So Important in California

California probate courts generally presume that if a will was last in the possession of the testator (the person who created it) and it cannot be found at death, then the testator likely revoked the will. This is a legal presumption, not just speculation.

California Probate Code §6124:If the decedent had possession of the original will and it cannot be found at death, the law presumes it was revoked—unless proven otherwise.

Because of this presumption, trying to probate a copy of the will (rather than the original) requires extra evidence and sometimes litigation.

Legal Steps to Take When the Original Will Is Missing

Step 1: Search Thoroughly for the Original

Before pursuing alternatives, make a diligent search:

• Check safe deposit boxes

• Contact the drafting attorney or estate planner

• Ask close relatives or the named executor

• Contact storage services like DocuBank or digital vault providers

Step 2: File the Copy with the Probate Petition

If the original still cannot be found, you can petition the court to admit the copy of the will. This is done under the California Probate Code §8223, which allows a lost or destroyed will to be probated if clear and convincing evidence proves:

1. The contents of the will,

2. That it wasn’t revoked, and

3. That it was validly executed.

You must include:

• A photocopy of the will,

• A Declaration of Diligent Search,

• Statements from witnesses, such as the attorney who drafted the will or those who were present when it was signed.

Step 3: Notify All Heirs and Interested Parties

Under California Probate Code §8200(a), any person who has custody of a will is legally required to deliver it to the probate court clerk within 30 days of the decedent’s death. If only a copy is found, the court must still be notified.

Also, heirs at law (those who would inherit under intestate succession) must be formally notified of the petition to probate the copy, since they might object or claim the decedent revoked the will.

Step 4: Prepare for a Possible Will Contest

When a copy is used, the chances of a will contest increase, especially if:

• They will disinherit natural heirs,

• There is a newer will,

• The circumstances of the will’s disappearance are suspicious.

In these cases, the court may schedule a hearing to evaluate evidence and decide whether to admit the copy or treat the estate as intestate (no valid will).

What If the Court Rejects the Copy?

If the court finds that the copy of the will cannot be admitted:

• The estate will be administered as if no will exists,

• The assets will be distributed under California intestate succession laws (Probate Code §6400),

• Heirs may include spouses, children, siblings, and other next of kin.

This could dramatically alter who inherits, especially if the will names non-family beneficiaries.

How a Probate Attorney Can Help

Successfully admitting a copy of a will to probate in California requires:

• Gathering witness declarations and documentary evidence,

• Preparing formal petitions and court filings,

• Navigating objections and potential litigation,

• Complying with the Probate Code and evidentiary rules.

Working with an experienced California probate attorney can significantly improve your chances of successfully validating the will copy and preserving the decedent’s intentions.

Final Thoughts

Losing the original will doesn’t necessarily mean the decedent’s wishes must be ignored—but it does mean additional legal hurdles must be cleared. If you’re in this situation, act quickly, collect supporting evidence, and consult with a qualified probate lawyer.

California Probate Code §§8200 and 8223 provide a path forward—but it’s not one to walk alone.

Contact the top-rated California trust and probate attorneys Moravec, Varga & Mooney today to schedule a telephonic consultation. Have questions? call (626) 460-1763 or email LV@MoravecsLaw.com.

Southern California Probate Lawyer Serving all counties in California, including Los Angeles, Riverside, San Bernardino, Sacramento, Santa Cruz & Beyond.