What to do if the original will is being withheld in Alabama

Short answer: If the named original will is being withheld by a relative (for example, a step‑sister), you can ask the probate court in the county where your father lived to accept and probate a copy or to compel production of the original. You will need to file a formal petition, provide supporting evidence (copies, witness affidavits, attorney file copies, proof of due execution), and ask the court for orders (citation, subpoenas, or appointment of a personal representative) that force production or allow probate without the original. This process is fact driven and procedural—talk to a probate attorney licensed in Alabama if possible.

Detailed answer — how the process typically works in Alabama

Probate courts generally require the original will to admit it to probate. When the original cannot be located or is being withheld, Alabama probate law and court procedures provide ways to move forward. Below are the main legal and practical steps you or another interested person can expect to take.

1) Who can file?

An “interested person” (often an heir, beneficiary, or the nominated executor) may file a petition to probate the will or to open administration. If the will names an executor who refuses or cannot present the original, other interested persons can petition the court.

2) File a petition with the probate court

You must file a petition in the probate court in the county where your father was domiciled when he died. The petition can seek one or more of the following remedies:

Probate of the original will (if it is produced).
Probate of a copy or a lost will — asking the court to admit the copy and to make findings about whether the original was revoked or lost.
Appointment of a personal representative or temporary administrator to preserve estate assets while the dispute is resolved.

3) Ask the court to compel production or issue subpoenas

If someone is in possession of the original will and refuses to turn it over, the probate court can order that person to produce the document. The court can also issue subpoenas for documents and testimony (subpoena duces tecum). If the person ignores court orders, the court may impose sanctions or hold them in contempt.

4) Proving a lost or withheld will

If the original is unavailable, you can ask the court to admit a copy based on evidence showing:

That the instrument offered as the will accurately reflects the decedent’s last testamentary intent (for example, a photocopy, an attorney’s file copy, or a contemporaneous draft).
That the decedent properly executed the will (signatures and witness testimony or a self‑proving affidavit, if available).
That the original is lost or being withheld but has not been revoked by the testator (no proof of subsequent will or intentional destruction).

Evidence may include witness affidavits from the attesting witnesses or the drafting attorney, a copy from the attorney’s file, emails or drafts showing intent, bank or asset records consistent with the will, and testimony about when and where the original was last seen. If the person withholding the will intentionally destroyed it to revoke, courts will treat that as revocation; the proponent of the copy bears the burden of proving the will’s contents and validity.

5) Temporary relief while the issue is resolved

You can ask the court to appoint a temporary or interim personal representative to secure assets (bank accounts, real property) so they are not dissipated while the probate dispute proceeds. The court has broad equitable powers to protect estate property.

6) Possible outcomes

The court orders the person in possession to produce the original and admits it to probate.
The court finds the original was lost but admits a copy after hearing sufficient proof.
The court finds the original was intentionally revoked (for instance, by destruction by the testator) and declines to admit the alleged will; intestacy rules would then control.
The court appoints an administrator and proceeds under the estate administration rules if no probatable will is admitted.

Statutes and official resources

Alabama’s laws on wills and estates are collected in the Code of Alabama, Title 43 (Wills, Decedents’ Estates, Fiduciaries). For general information and to review statutes, see the Alabama Legislature website: Code of Alabama, Title 43. For local probate court procedures and contact information, check the Alabama Judicial System: Alabama Judicial System. Your county probate court clerk can provide forms and filing requirements for petitions and for issuing citations or subpoenas.

Practical checklist — what to gather before you file

Copy of the will (photocopy, scanned file, or any draft).
Names and contact information for the attesting witnesses and for the attorney who drafted the will (if any).
Any self‑proving affidavit or witness affidavits if available.
Evidence showing where and when the original was last seen and who has it now.
Bank statements, deeds, titles, or beneficiary designations that show the estate plan is consistent with the will.
Documentation of the decedent’s death (death certificate) and proof of your status as an interested person (relationship, beneficiary designation, etc.).

Helpful Hints

Act quickly — probate deadlines, asset transfers, and creditor deadlines can affect estate property.
Keep careful records of communications with the person withholding the original, including dates, times, and what was said or sent in writing.
If the will was prepared by an attorney, contact that attorney. Many lawyers keep originals or copies and can provide sworn statements about execution and contents.
Do not take documents by force. Instead, follow court procedures (petition, subpoena, contempt) — taking documents could create legal problems for you.
If you are concerned the person withholding the will will dissipate assets, ask the court for emergency appointment of a temporary personal representative or for injunctive relief to freeze estate assets.
Probate disputes can become contested; consider hiring a probate attorney who handles estate litigation in Alabama to guide filings, hearings, and evidence gathering.

Next steps: Call the probate court clerk in the county where your father lived and ask about filing a petition to probate a will or for appointment of a personal representative. If you can, consult a probate attorney in Alabama to prepare the petition, affidavits from witnesses, and any subpoenas the court will need.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It explains general procedures under Alabama law but cannot address the specifics of your situation. For advice tailored to your case, consult a licensed Alabama attorney.