What happens when a will is lost or destroyed under Alabama law?

Short answer: If the original will cannot be located because it was lost or destroyed, Alabama law allows a will’s terms to be proven and admitted to probate so long as the person seeking probate proves the will’s contents, that it was validly executed, and that the decedent did not intend to revoke it. If the testator intentionally destroyed the document with the intent to revoke, the act typically revokes the will.

Detailed Answer — How Alabama treats lost or destroyed wills

This section explains, step by step, what usually happens when an original will is missing, lost, or physically destroyed in Alabama. It describes who has the burden of proof, how courts evaluate evidence, and practical consequences.

1. Two different questions the probate court asks

1. Was the will validly executed? Alabama requires that a will be properly signed and witnessed under the rules for testamentary documents (see Title 43 of the Code of Alabama).
2. Was the will revoked by the testator? A will can be revoked by a later will, by a written revocation, or by the testator destroying the original with the intent to revoke.

2. If the original will was intentionally destroyed by the testator

If the testator burned, tore, or otherwise destroyed the will with the intent to revoke it, Alabama treats that act as a revocation. The court will refuse to probate the destroyed will as a valid instrument. Proof normally requires evidence that the testator did the act and did so with the intent to revoke.

3. If the original will was lost or destroyed without the testator’s intent to revoke

Alabama permits admission of a lost or destroyed will to probate when the proponent can prove two things by clear and convincing evidence:

• the contents of the will, and
• that the loss or destruction did not result from the testator’s intent to revoke.

Evidence commonly used includes a copy (typed photocopy or electronic copy), witnesses who recall the language or attest to having seen the executed original, attorney or notary records, drafts, or other documentation that tracks the will’s terms. The court also considers circumstantial evidence showing the testator’s intent.

4. Who has the burden of proof?

The person seeking to admit the lost or destroyed will (often an executor nominee or family member) bears the burden to produce sufficient evidence of the will’s contents and nonrevocation. If the proponent meets this burden, the court may admit the will and appoint the named personal representative. Interested parties may object and present contrary evidence.

5. Common practical scenarios

• Copy in attorney’s files: If a lawyer kept a signed copy or a scanned copy, that assists the proponent materially.
• Witness testimony: Witnesses who saw the signing or later viewed the original can testify to contents or that the decedent did not revoke it.
• Destroyed by someone else: If someone else destroyed the will without the testator’s intent to revoke (for example, an accidental fire), many courts will admit evidence to probate the will.
• Ambiguities: If only partial evidence exists, the court may admit the proved portions and treat unproven portions as intestate property (no will on that portion).

6. What the probate process typically requires

1. File a petition in the probate court (county probate court where the decedent lived).
2. Attach available copies, affidavits, witness statements, attorney file documents, and any circumstantial evidence.
3. The court will notify heirs and interested parties and may schedule a hearing.
4. The court evaluates whether the proponent proved both the will’s contents and that there was no revocation.
5. If admitted, the court issues letters of administration or letters testamentary consistent with the probate judgment.

7. Why the difference between lost and intentionally destroyed matters

An intentional destruction with the intent to revoke is legally decisive: the act itself revokes the will. But accidental loss or destruction leaves the question open — the court focuses on evidence and intent. Because courts must respect a testator’s intent, they require convincing proof before admitting a nondocumentary will into probate.

Relevant Alabama law and where to read it

Alabama’s statutes covering wills and probate procedure appear in Title 43 of the Code of Alabama (Wills) and related probate provisions. For the exact statutory language and procedures, consult Title 43 of the Code of Alabama and local probate rules. The Alabama Legislature’s official code information is available at the Alabama Legislature website: https://www.legislature.state.al.us/. You can also review probate court procedures at the Alabama Judicial System site: https://judicial.alabama.gov/.

How a typical contested scenario plays out

Example hypothetical facts: Decedent signed a will in 2015 naming a child as executor. The original will later cannot be found after a house fire. The decedent did not make any later will. The nominated executor files a petition to probate using a scanned copy and two witnesses who recall the signing and confirm the decedent never said they wanted to revoke the will. An heir objects, claiming the decedent told them orally that they wanted to revoke. The probate judge holds a hearing, weighs witness credibility and documentary evidence, and decides whether the proponent proved the will’s contents and lack of revocation. If the judge admits the will, the scanned copy’s terms control distribution. If the judge finds revocation or insufficient proof, the estate may be distributed as if there were no valid will (intestate succession).

Helpful Hints

• Search carefully before filing: look for original documents, attorney files, bank safe deposit boxes, and safe storage locations.
• Gather documentary evidence: copies, drafts, email exchanges with counsel, and client files help reconstruct terms.
• Get witness affidavits quickly: witnesses’ memories fade. Affidavits that describe witnessing execution or reading the document strengthen your case.
• Document the circumstances of loss or destruction: if fire or theft caused the loss, official reports (police, fire department) help show lack of intent to revoke.
• Check for later wills: search probate records and contact attorneys who handled the decedent’s affairs to confirm no later instrument exists.
• File promptly: statutes of limitations and notice rules vary; early filing avoids complications and preserves rights.
• Expect a hearing: be prepared to present evidence and respond to objections from heirs or creditors.
• Consult a probate attorney: probate rules and local practices affect outcomes. An attorney can draft affidavits, prepare exhibits, and present evidence effectively.

Disclaimer: This article explains general principles under Alabama law and is for informational purposes only. It is not legal advice. For advice about a specific situation, contact a licensed Alabama attorney who handles probate and estate matters.