Lost Originally Will, Copy Received

[Bone15]

What is the name of your state?undefinedWhat is the name of your state? NC The Will of my father, who is still living but has been diagnosed with Alzheimer's, the originally has been lost. A copy was given to me. Is this copy good enough to be executed when the time comes? I have Durable Power of Attorney and would like to know if I need to take the copy to be filed with the local courthouse. The will was done in Florida and we now are in NC. I was told that it was not taken to a courthouse in Florida to be filed. Would appreciate any help in this matter.

 

[seniorjudge]

What is the name of your state?undefinedWhat is the name of your state? NC The Will of my father, who is still living but has been diagnosed with Alzheimer's, the originally has been lost. A copy was given to me. Is this copy good enough to be executed when the time comes? I have Durable Power of Attorney and would like to know if I need to take the copy to be filed with the local courthouse. The will was done in Florida and we now are in NC. I was told that it was not taken to a courthouse in Florida to be filed. Would appreciate any help in this matter.

A written will may be revoked either “y a subsequent written will or codicil or other revocatory writing” or by “being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in his presence and by his direction.” N.C.G.S. § 31-5.1 (1999).

http://www.aoc.state.nc.us/www/public/coa/opinions/2001/001195-1.htm


If you can't produce the original, there could possibly be a presumption that it was revoked.

Here is where the stuff will go if you do not find the original:

http://www.finance.cch.com/pops/c50s10d190_NC.asp


If you are using the durable power of attorney to (for example) transfer real property, then you may need to record it.

But you really should check with a North Carolina attorney before you do anything.

(I am assuming pa is a resident of NC and is now unable to make a new will.)

 

[JETX]

Is this copy good enough to be executed when the time comes?

Actually, SJ is likely NOT correct in his presumption.
There is NOTHING in your post to indicate that the copied will has been destroyed with "the intent and for the purpose of revoking it, by the testator himself or by another person in his presence and by his direction."

HOWEVER, there are lots of issues that need to be resolved/answered before anyone can determine if the copy is valid or not. For example, is it a holographic will?? If so, does it meet all the requirements of a valid will.
Was it prepared by an attorney?? Is the attorney still available?? Does the attorney also have a copy??

The requirements for wills in North Carolina can be found at:
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_31.html

You need to take the copy and your POA to a local (NC) attorney to let him/her review it for its validity.

 

[BelizeBreeze]

One point here for clarification.

From a cursory reading of the post, it seems the original will was executed in Florida, so would the will be required to conform to the Florida statutes initially?

 

[JETX]

From a cursory reading of the post, it seems the original will was executed in Florida, so would the will be required to conform to the Florida statutes initially?

You are correct.... good catch!!
The will would have to be valid in Florida first... in order to be even considered for validation in NC....
Then, if the will itself is valid (in FL), the copy would have to be reviewed for validity in NC.

 

[seniorjudge]

One point here for clarification.

From a cursory reading of the post, it seems the original will was executed in Florida, so would the will be required to conform to the Florida statutes initially?

In Florida, there is a well-established rule that when a Will has been lost or destroyed, the presumption of law is that the testator destroyed it with the intention of revoking it, and the burden of proving to the contrary is on the propounder of the Will. The contents of a lost or destroyed Will can be proved by the testimony of two disinterested witnesses or by the testimony of one disinterested witness and a "correct copy" of the lost or destroyed Will.

http://www.alipman.com/snowbirdguide/chap15.html

A will must be validly executed in accordance with the law of where it is executed.

Now, if OP has a copy of the EXECUTED will and can round up two disinterested witnesses, he may have a shot (if that website is correct in its statement of Florida law).

 

[BelizeBreeze]

The 2000 Florida Statutes

Title XLII
ESTATES AND TRUSTS Chapter 733
Probate Code: Administration Of Estates View Entire Chapter

733.207 Establishment and probate of lost or destroyed will.--

(1) The establishment and probate of a lost or destroyed will shall be in one proceeding. The court shall recite, and thereby establish and preserve, the full and precise terms and provisions of the will in the order admitting it to probate.

(2) The petition for probate of a lost or destroyed will shall contain a copy of the will or its substance. The testimony of each witness must be reduced to writing and filed and shall be evidence in any contest of the will if the witness has died or moved from the state.

(3) No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised. The content of the will must be clearly and distinctly proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

History.--s. 1, ch. 74-106; s. 57, ch. 75-220.

 

[seniorjudge]

The 2000 Florida Statutes

Title XLII
ESTATES AND TRUSTS Chapter 733
Probate Code: Administration Of Estates View Entire Chapter

733.207 Establishment and probate of lost or destroyed will.--

(1) The establishment and probate of a lost or destroyed will shall be in one proceeding. The court shall recite, and thereby establish and preserve, the full and precise terms and provisions of the will in the order admitting it to probate.

(2) The petition for probate of a lost or destroyed will shall contain a copy of the will or its substance. The testimony of each witness must be reduced to writing and filed and shall be evidence in any contest of the will if the witness has died or moved from the state.

(3) No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised. The content of the will must be clearly and distinctly proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

History.--s. 1, ch. 74-106; s. 57, ch. 75-220.

Looks like he doesn't need an executed copy after all.

Who is getting the stuff?

Bone15, here's a hint: If you can get someone who would be getting something if there were NO will to testify to the contents of the lost will (but will be getting nothing if the lost will is proved), that would be one powerful witness.

Of course, if there is a major family fight, that idea won't work.

 

[JETX]

(2) The petition for probate of a lost or destroyed will shall contain a copy of the will or its substance. The testimony of each witness must be reduced to writing and filed and shall be evidence in any contest of the will if the witness has died or moved from the state.

Good post, BB.

And shows that "In Florida, there is a well-established rule that when a Will has been lost or destroyed, the presumption of law is that the testator destroyed it with the intention of revoking it, and the burden of proving to the contrary is on the propounder of the Will." isn't so 'well-established' as thought, huh??

 

[seniorjudge]

Good post, BB.

And shows that "In Florida, there is a well-established rule that when a Will has been lost or destroyed, the presumption of law is that the testator destroyed it with the intention of revoking it, and the burden of proving to the contrary is on the propounder of the Will." isn't so 'well-established' as thought, huh??

http://www.flprobatelitigation.com/

I don't know the answer to that question, but this is one great site for Florida probate law. I may poke around on there later.

 

[seniorjudge]

One point here for clarification.

From a cursory reading of the post, it seems the original will was executed in Florida, so would the will be required to conform to the Florida statutes initially?

This sounds like a law school question.

Testator makes a will in one state, moves to another state, loses the will, and becomes incompetent.

Bone15, please give us more facts and details.

 

[Bone15]

NC- Father made the will by an attorney in Florida. The originally will was lost before a visit to a local attorney in NC was done. As POA,I only have a copy I am it as well as another sibling who is also stated to act as POA in case I am unable to do the "job". The other sibling also has a copy of the will and POA. I will look on the site for NC but will contact a local lawyer and see what can be done for this. Father is unable to make a new will, due to Alzheimer's.

 

[BelizeBreeze]

NC- Father made the will by an attorney in Florida. The originally will was lost before a visit to a local attorney in NC was done. As POA,I only have a copy I am it as well as another sibling who is also stated to act as POA in case I am unable to do the "job". The other sibling also has a copy of the will and POA. I will look on the site for NC but will contact a local lawyer and see what can be done for this. Father is unable to make a new will, due to Alzheimer's.

Did you not read the responses?

You FIRST must validate the will in Florida. NOT NC

 

[Bone15]

NC - The originally will was lost not be a deliberate act to null and void it but by an accident. In the will, he states that whoever is the care giver at the time would receive 75% of his assets. Both, myself and the other sibling are aware of this but have other siblings and are being fair. Other siblings are residing in Real Estate property in another state owned by Father. I know that lawyers have heard everything but we just want to provide for Father the best care and not make any mistakes with his assests.

 

[BelizeBreeze]

NC - The originally will was lost not be a deliberate act to null and void it but by an accident. In the will, he states that whoever is the care giver at the time would receive 75% of his assets. Both, myself and the other sibling are aware of this but have other siblings and are being fair. Other siblings are residing in Real Estate property in another state owned by Father. I know that lawyers have heard everything but we just want to provide for Father the best care and not make any mistakes with his assests.

And what does this have to do with validating the will in Florida?