Probating a Lost Will

The probate of a Will is supposed to begin with the filing of the original Will with the county clerk's office.  But what if you can't find the original Will?  Then you've got problems.  But luckily, you also have a couple of good Illinois resources for dealing with this situation (although registration is required for both):

Janet's L. Grove's article in the October 2005 issue of the ISBA Trusts and Estate Section newsletter

Helen Gunnarsson's article in the October 2006 Illinois Bar Journal

If you are seeking to probate a lost Will in Illinois, you need to overcome the presumption that the lost Will was revoked by the person who created it (the "testator").  But how do you prove a negative (that the testator DIDN'T revoke the Will)?  Ms. Grove indicates that good evidence would include the following:

(1) continued strong relations between the testator and the beneficiaries,

(2) declarations by the testator of an unchanged attitude concerning the dispositions in the will, and

(3) possession of or access to the will by an adverse party.

If you are able to overcome the presumption of revocation, you aren't done -- now you have to prove that (a) the lost Will was a valid Will (i.e. properly executed) and (b) the contents of the lost Will (what did it say?).

For a Florida take on this issue, check out Juan Antunez's post here.  Professor Beyer discusses Texas law and lost Wills here.

Comments

[Becky]

Help!! November 23, 2006. State of Minnesota. Lost will. Severance of Joint Tenancy. My husband died a little more than 2 years ago (We had been married for 23 1/2 years). I thought everything was in joint tenancy (including homestead/house) and therefore, there was no need to file probate. I also had a copy of my deceased husbands will giving me everything and making me personal representative. Now I have lost that will. The attorney's office that made out the will has destroyed all of their files after calling the state procurement office as none of the attorneys in that office are no longer in practice. I borrowed a lot of money on a home equity mortage/loan ($55,000)which I still owe of course, I was hoping to pay these bills off at the time of closing on the sale of my home. I fixed up the house to sell so that I could move into a 55+ substadized senior apartment because my knees and legs are in such bad shape. I received an offer on the house which I accepted and closing was set for Dec. 7th 2006. Well, when I gave the abstact to the title company they found that my husband had deeded to himself/by signing a quit claim deed in 2003. Therefore, (the title company says) it severed the joint tenancy. Therefore, we are no long joint tenants, but tenants in common (I believe he did this because I had a lot of medical bills and he was protecting the house). So now I have a problem, because I have a step-daughter. Now it seems I have a LIFE ESTATE in 1/2 of the property (my husbands half of Tenants in Common). And I own the other 1/2 in Tenants in Common which belongs to me. If I do not find a copy of my husbands will or if I do not prove the quit claim deed to be illegal, it appears when I die my step-daughter can take possession of the 1/2 of the propery, but not until I die and she can only have 1/2 of the property at the time I die, because my 3 children will inherit the other 1/2 of the property and I own 1/2 of the property in Tenants in Common. What a mess. If only I could find the will, but I haven't been able to. Does anyone there know if a person can quit deed to themselves (without letting the other joint tenant know?) The quit claim deed does not say anything about severing the joint tenancy. The attorney who did our "mirrored wills" (is a mayor and a school teacher now), he has offered to do an affidvit stating that he did the wills and the wills were mirrored copies (I have a copy of my will which was made out at the same time). My sister (who also has a law degree, but does not practice at this time), who was a witness to the will is also willing to do an affidivit stating that the contents of the will gave me everything, including all real estate. Does anyone think that the 2 affivdits by the person (attorney) who drew the wills up for us and the witness (who also has a law degree) and a copy of the will that the attorney did for me (mirrored wills were done) will hold up in court? What is the opinion of whether a person can sever the joint tenancy without giving the other joint tenant notification? I have had great harm don to me by not knowing of the severance of the joint tenancy. I would not have put any money into this house had I know about this.) I did record my affidivit of survivorship after my husband died. Any comments, information, legal advise is welcome. No, I can not afford an attorney. I went to an attorney yesterday and talked to him for 2 hours and he said I owed him $1,000. I am a very low income person and can not pay an attorney. Now I have given this attorney yesterday my money for groceries and bills for the month of December. And I have no savings. So I have to try to do this myself. I know now (because I just found out about the quit claim deed thing) that I do have to start probate proceedings. Thank you for any advice. Should I submit a copy of the quit claim deed to the court to find out if it is legal first. And thn should I submit the affidivits of the will to court also? The judge can no more than say no - right?? Thanks in advance for any helpful infor.