Detailed answer

This article explains how Alabama probate courts generally handle attempts to admit a copy of a will when the original cannot be located, and what you must prove to prevent the court from presuming the will was revoked. This is not legal advice; consult a probate attorney about your case.

Overview – the legal problem

When a decedent’s original will cannot be found after death, Alabama probate courts begin with a presumption that the testator revoked the will if the will was last known to be in the testator’s possession. To admit a copy of the will you must overcome that presumption by proving both that the copy accurately reflects the decedent’s last will and that the decedent did not revoke it.

What the court will require (general principles under Alabama law)

• File a formal petition in the probate court in the county where the decedent lived, asking the court to admit a copy of the will as the decedent’s last will and testament.
• Prove the will’s execution formally or by testimony. Alabama requires proof that the will was properly executed (typically by the testimony of subscribing witnesses or a self-proving affidavit attached to the will).
• If the original is missing and was last in the decedent’s possession, overcome the presumption of revocation. The burden is on the party seeking admission to show by clear and convincing evidence that the decedent did not revoke the will and that the copy is an accurate copy of the last will.
• Provide evidence of the copy’s authenticity and of the circumstances that explain why the original cannot be located (for example, proof of theft of personal effects, loss in a fire, safe-deposit box circumstances, or testimony that the decedent delivered only a copy to an agent).

Typical evidence that helps overcome the presumption of revocation

• Testimony of one or more subscribing witnesses who recall the testator signing the original will and can identify the copy as a true copy.
• A self-proving affidavit (if executed when the original still existed) attached to the copy or evidence that an affidavit once existed and was lost with the original.
• Affidavits from custodians (e.g., attorney, banker) explaining how the original disappeared and that the decedent did not indicate an intent to revoke the will.
• Forensic evidence such as a handwriting expert if the signature is contested.
• Secondary documentary evidence that the copy reflects the decedent’s final instructions (emails, drafts, contemporaneous letters, or actions consistent with the copy’s terms).

Procedure in probate court (step-by-step)

1. Prepare a petition to probate a copy of the will (sometimes called a petition for probate of a lost or destroyed will). The petition should identify the decedent, state why the original cannot be produced, and attach the copy you seek to admit.
2. Attach affidavits and declarations from witnesses who can attest to execution, the contents of the original, and the circumstances of its loss.
3. File the petition with the probate court, pay filing fees, and request a hearing.
4. Give statutory notice to heirs, beneficiaries, and other interested parties so they can object if they choose.
5. At the hearing the court will weigh the evidence. If the petitioner shows by clear and convincing evidence that the copy is accurate and that the decedent did not revoke the will, the court may admit the copy to probate.

What happens if the court is not convinced?

If you cannot rebut the presumption of revocation, the probate court may refuse to admit the copy and the estate could be administered as if there were no will (intestate distribution). If there are competing claims or serious disputes about authenticity or revocation, the court may order additional discovery or a full trial.

Statutes and where to look

Alabama’s probate and will provisions are codified in the Code of Alabama (Code of Alabama 1975). For the precise statutory language and the specific procedural rules, search the Code of Alabama and local probate court rules. The Alabama legislature’s website is a primary place to search the current code: https://www.legislature.state.al.us/

Because courts rely both on statute and on Alabama case law about lost wills, a practitioner will usually cite controlling appellate decisions as well as statutory sections when arguing why a copy should be admitted. A local probate attorney can identify the most on-point statute sections and cases for your county’s probate court.

Helpful Hints

• Act quickly. Start gathering evidence and witnesses before memories fade.
• Locate and keep safe every copy and draft of the will, emails or notes from the testator, and any related documents (trust documents, beneficiary designations, bank records showing distributions consistent with the will).
• Get written, sworn affidavits from subscribing witnesses and any attorney or custodian who handled the original or a copy.
• If the original was in a safe-deposit box or with a bank, request bank records and any logs that show access to the box.
• Document efforts to locate the original (letters to known custodians, inventory of the decedent’s papers, police report if theft is suspected).
• Prepare to show why revocation is unlikely—e.g., the decedent’s consistent statements that the will reflected his/her wishes, lack of subsequent documents executing a revocation, or corroborating conduct.
• Notify all interested parties early and be prepared for objections—many disputes arise between heirs when originals are missing.
• Consult a probate attorney. Judges expect properly drafted petitions and evidence; an attorney can help present the proof the court needs and can advise whether a settlement or stipulated admission might avoid contested hearings.

Important: This information explains general Alabama probate practice and common evidence that courts consider when a will’s original cannot be located. It is not legal advice. For advice about a specific case, contact a licensed Alabama probate attorney who can evaluate your facts and representation needs.