Establishing a Lost Will in a Florida Probate Proceeding

Handling an estate can be complicated, especially when the decedent’s original will has been lost or misplaced. In Florida, the law allows interested parties to probate lost or destroyed wills, but there are strict procedural and evidentiary requirements that must be followed. Whether you are attempting to admit a copy of a lost will or defending against such a petition, it is crucial that you understand Florida’s legal standard.

Our Tampa probate litigation attorneys at Bleakley Bavol Denman & Grace are experienced in navigating these complex cases and are here to guide you through each step of the process.

Florida Law on Lost Wills

During the Florida probate process, interested parties are allowed to probate a lost or destroyed will if they can prove the full and precise terms of the will. According to Florida Statutes section 733.207, this can be achieved through the testimony of two disinterested witnesses. If there is a correct copy of the will, only one disinterested witness is enough. These laws are in place to ensure that decedents’ wishes are respected even if the original document can’t be found, while also providing protections against fraud.

Copy of Lost Will Accepted by Miami-Dade Probate Court

A recent appellate case, Coleman v. Horn, shows how Florida courts deal with lost will petitions. After the decedent’s death, her sister, Coleman, filed for formal administration of the estate, claiming the decedent died intestate (without a will). She was appointed personal representative. Over a year later, the decedent’s brother, Horn, petitioned to establish a copy of the decedent’s lost will, executed in 2020 and notarized by a third party. Horn claimed that the original will had been misplaced, leaving only the copy for probate.

Coleman objected and filed a motion to dismiss. She argued that Horn had failed to fulfill the statutory requirements for establishing a lost will. The trial court held an evidentiary hearing, heard testimony from the notary, and ultimately granted Horn’s petition. Coleman appealed, arguing insufficient evidence and failure to comply with certain procedural requirements outlined in Florida Probate Rule 5.5.10(c), (d), and (e). These sections govern witness testimony, notice to potential beneficiaries, and the requirement that probate orders state the will’s terms in full.

On appeal, the court did not find any apparent fundamental error on the face of the order. And since there wasn’t any transcript of the testimony at the evidentiary hearing or a statement of the evidence settled and approved by the trial court, as required under Florida Rule of Appellate Procedure 9.200(b)(5), the court ruled that the trial court’s findings were correct. The appellate court affirmed the trial court’s decision.

Regarding the claims that Horn failed to comply with certain procedural requirements, the court found that the arguments as to subsections (d) and (e) were largely unpreserved because Coleman failed to raise timely objections in the trial court. As for the allegation that Horn failed to comply with subsection (c), the court found that Coleman did not demonstrate harmful error. Section C requires witness testimony to be reduced to writing for potential use in future contests of the will.

Contact a Tampa Probate Litigation Attorney Today

Probate cases involving lost or destroyed wills involve complex procedural and evidentiary issues. If you are navigating a probate matter involving a lost or destroyed will, contact our experienced Tampa probate litigation attorneys at Bleakley Bavol Denman & Grace today to schedule a consultation.

Source:

scholar.google.com/scholar_case?case=91269054336012270&q=Myrlie+Coleman,+as+Personal+Representative+of+the+Estate+of+Natalie+Horn,+Appellant,&hl=en&scisbd=2&as_sdt=4,10,325,326,327&as_ylo=2025