Blog

Lost Will in California

Innocently or not so innocently a lot of times the original will can not be found after death. Does that mean the estate plan will not be followed? It depends.  In many instances a photocopy will be honored as long as there is no proof of intent to revoke the will. Here are the most relevant California probate code sections. Of course it’s a good idea to talk to a California probate lawyer about this as it is a complex area of the California probate code.

CALIFORNIA CODES PROBATE CODE SECTION 8220-8226
8220.  Unless there is a contest of a will:
(a) The will may be proved on the evidence of one of the
subscribing witnesses only, if the evidence shows that the will was
executed in all particulars as prescribed by law.
(b) Evidence of execution of a will may be received by an
affidavit of a subscribing witness to which there is attached a
photographic copy of the will, or by an affidavit in the original
will that includes or incorporates the attestation clause.
(c) If no subscribing witness resides in the county, but the
deposition of a witness can be taken elsewhere, the court may direct
the deposition to be taken. On the examination, the court may
authorize a photographic copy of the will to be made and presented to
the witness, and the witness may be asked the same questions with
respect to the photographic copy as if the original will were
present.
8221.  If no subscribing witness is available as a witness within
the meaning of Section 240 of the Evidence Code, the court may, if
the will on its face conforms to all requirements of law, permit
proof of the will by proof of the handwriting of the testator and one
of the following:
(a) Proof of the handwriting of any one subscribing witness.
(b) Receipt in evidence of one of the following documents reciting
facts showing due execution of the will:
(1) A writing in the will bearing the signatures of all
subscribing witnesses.
(2) An affidavit of a person with personal knowledge of the
circumstances of the execution.
8222.  A holographic will may be proved in the same manner as other
writings.
8223.  The petition for probate of a lost or destroyed will shall
include a written statement of the testamentary words or their
substance. If the will is proved, the provisions of the will shall be
set forth in the order admitting the will to probate.
8224.  The testimony of each witness in a proceeding concerning the
execution or provisions of a will, the testamentary capacity of the
decedent, and other issues of fact, may be reduced to writing, signed
by the witness, and filed, whether or not the will is contested. The
testimony so preserved, or an official reporter’s transcript of the
testimony, is admissible in evidence in any subsequent proceeding
concerning the will if the witness has become unavailable as a
witness within the meaning of Section 240 of the Evidence Code.

 

8225.  When the court admits a will to probate, that fact shall be
recorded in the minutes by the clerk and the will shall be filed.

 

8226.  (a) If no person contests the validity of a will or petitions
for revocation of probate of the will within the time provided in
this chapter, admission of the will to probate is conclusive, subject
to Section 8007.
(b) Subject to subdivision (c), a will may be admitted to probate
notwithstanding prior admission to probate of another will or prior
distribution of property in the proceeding. The will may not affect
property previously distributed, but the court may determine how any
provision of the will affects property not yet distributed and how
any provision of the will affects provisions of another will.
(c) If the proponent of a will has received notice of a petition
for probate or a petition for letters of administration for a general
personal representative, the proponent of the will may petition for
probate of the will only within the later of either of the following
time periods:
(1) One hundred twenty days after issuance of the order admitting
the first will to probate or determining the decedent to be
intestate.
(2) Sixty days after the proponent of the will first obtains
knowledge of the will.

Ratings and Reviews