What Happens If You Lose the Original Will? A Massachusetts Estate Lawyer Explains

If you can’t find the original signed will, Massachusetts law presumes the decedent destroyed it on purpose — meaning they intended to revoke it. That presumption can be overcome, but it shifts the burden to whoever wants the will admitted. You’ll need to file for formal probate, present a copy of the will, and offer evidence that the original was lost (not deliberately destroyed). If the court is satisfied, it can admit the copy. If not, the estate passes by intestacy, as if there were no will at all.

This is one of the most stressful situations a family can face after a death — and it’s also one of the most preventable. Here’s what you need to know.

The Massachusetts Rule on Lost Wills

Under Massachusetts case law, when a will that was last known to be in the testator’s possession cannot be found after death, courts apply a presumption of revocation. The legal logic: if the testator had the will and it’s now missing, the most likely explanation is that the testator destroyed it intentionally to revoke it.

This isn’t a Massachusetts quirk — it’s the common-law rule across most states. But it’s a presumption, not a conclusion. With the right evidence, it can be rebutted.

What You Need to Probate a Copy of a Lost Will

To get a copy of a lost will admitted to probate in Massachusetts, you generally have to prove four things:

1. The will was properly executed. A signed copy, the attorney’s drafting file, witness recollections, and notary records can establish this.
2. The contents of the will. A copy is the cleanest evidence. A draft, an unsigned version, or testimony about what the testator said the will provided can also work — but a complete signed copy is dramatically stronger.
3. The will was not revoked. This is the heart of it. You’re rebutting the presumption.
4. The original cannot be located despite a diligent search. You’ll be expected to describe what you searched, where, and when.

The strength of your case usually rises or falls on point 3 — proving non-revocation. Common ways families do this:

• The decedent recently spoke about the will or its provisions as if it were still in effect
• The decedent kept the will in a location the family doesn’t have access to (a safe deposit box, a former attorney’s office that has since closed, a home that flooded)
• The drafting attorney’s office lost the file due to a known event (fire, water damage, retirement)
• The decedent’s behavior was inconsistent with revocation (recent estate planning conversations, references to the named executor or beneficiaries)

Why Formal Probate Is Required

You cannot probate a lost or copied will through informal probate. Massachusetts magistrates handle informal probate without hearings — they have no mechanism for resolving a contested factual question like whether a will was revoked.

A copy or a lost-will case automatically goes to formal probate with judicial review. There will be a hearing. All interested persons — including the heirs at law, who would inherit by intestacy if no will is admitted — must receive formal notice. They can show up and object.

If you want a deeper background on how formal probate compares to the informal track, our breakdown of informal vs formal probate walks through the differences.

What Happens If the Court Refuses to Admit the Copy

If the court agrees that the presumption of revocation has not been overcome, the will (even though you have a copy) is treated as if it never existed for legal purposes. The estate then passes by Massachusetts intestacy rules — meaning a statutory formula determines who inherits, regardless of what the will said.

That formula is rarely what the decedent wanted. A surviving spouse with descendants who are not the spouse’s children, for example, doesn’t take everything under intestacy — even though most wills would have given them everything. Probate without a will in Massachusetts covers exactly how the intestate distribution works.

What You Should Do Right Now If You Can’t Find the Original

If you’ve just realized the original is missing, here’s the practical sequence:

1. Don’t panic, and don’t throw anything away. Box up papers, files, safe contents, and old correspondence rather than discarding anything.
2. Search systematically. Home safes, file cabinets, desk drawers, attics, basements, the decedent’s car, safe deposit boxes, the home of any close family member or trusted friend.
3. Contact the drafting attorney. Many attorneys keep originals or know where they were last seen. Even retired attorneys often kept records.
4. Check with the probate court. Some Massachusetts residents file their wills for safekeeping with the Probate and Family Court during their lifetime. It’s worth a call to the clerk’s office in the county of residence.
5. Look for a copy. Drafting attorneys almost always retain a copy. Some testators keep digital scans or photocopies in their files.
6. Document your search. Keep a log of where you looked, when, and what you found (or didn’t). The court will want this.
7. Talk to a probate attorney before you file anything. A poorly framed petition can prejudice the case.

How to Avoid This Problem in the First Place

If you’re doing your own estate planning right now, you can save your family this entire ordeal:

• Tell someone where the original will is stored. Not the contents — just the location. Your named executor (personal representative) needs to know.
• Use a fireproof, water-resistant safe at home, or a safe deposit box where someone has authority to open it. Be careful with safe deposit boxes if you’re the only person with access.
• Consider leaving the original with your drafting attorney. Many firms offer this as a service. Attorneys have professional obligations around document custody.
• Don’t store the original loose in a desk drawer. The single most common cause of lost wills is exactly this — a pile of papers, a move, a downsizing, a flood.
• Update without destroying carelessly. If you sign a new will, the new will should explicitly revoke prior wills, and you should physically destroy the old one with witnesses or in a way that’s documented. Do not just throw it out.

The personal representative’s role in Massachusetts is hard enough without the additional complication of a missing will.

Frequently Asked Questions

Can a copy of a will be probated in Massachusetts? Yes, but only through formal probate, and only if you can rebut the presumption that the missing original means the testator revoked the will.

What if multiple heirs object to admitting the copy? The court holds a contested hearing. The proponent of the copy carries the burden. Witness testimony, drafting records, and the decedent’s contemporaneous statements all become relevant. Expect the case to take several months at minimum.

What if no copy exists at all? You can still try to probate a lost will from witness testimony — but it’s much harder. You’d need clear and convincing evidence about the contents. In practice, courts are reluctant to admit wills based purely on memory.

Does it matter if the decedent kept the original at the lawyer’s office? Yes — significantly. If the original was last known to be with the drafting attorney rather than in the testator’s possession, the presumption of revocation may not apply at all, because the testator didn’t have access to destroy it.

Is a digital scan of the will the same as the original? No. A scan is a copy. Massachusetts requires admission of an original signed will for informal probate. Scans help prove contents but don’t substitute for the original.

How long do I have to file? The general rule under the MUPC is three years from the date of death. Lost-will cases are time-sensitive — evidence and witness memory degrade fast.

For Massachusetts-specific procedural details, the Probate and Family Court maintains forms and overviews on Mass.gov.

Talk to a Massachusetts Probate Attorney

A lost will is solvable in many cases — but the procedure matters, and the timing matters. The earlier you involve counsel, the better your chances of preserving evidence and presenting a clean case to the court.

The Law Offices of Kimberly Butler Rainen helps families across Andover, North Andover, Reading, North Reading, Middleton, Georgetown, and the surrounding Merrimack Valley navigate complicated probate situations — including lost-will cases. Call or contact our office to talk through what you’re facing. Our probate services page covers how we typically handle these matters.