Disclaimer: This is general information, not legal advice. I am not a lawyer. If you have a real legal issue, consult a licensed Arizona probate attorney about your facts.
Detailed Answer — What Arizona law requires when a will is lost or destroyed
Arizona handles lost or destroyed wills under the probate rules found in the Arizona Probate Code (Title 14, Arizona Revised Statutes). The outcome depends on two main issues:
- Whether the decedent intentionally revoked the will by destroying it (revocation), and
- Whether the person seeking to admit the will (the proponent) can prove the will’s existence, contents, and valid execution despite the missing original.
Link to Arizona Probate Code (Title 14): https://www.azleg.gov/arsDetail/?title=14
1) Revocation by destruction vs. accidental loss
If the decedent destroyed the original will with the intent to revoke it, Arizona law treats the will as revoked. Intent matters: mere physical destruction without the intent to revoke (for example, a paper lost in a flood) is not an effective revocation.
If the original is lost but there is no evidence the decedent intended to revoke it, Arizona courts allow a party to prove the will’s terms and validity using other evidence.
2) How a proponent proves a lost or destroyed will
When the original will cannot be produced, the court typically requires clear and convincing evidence that:
- The will was validly executed (e.g., signed and witnessed according to Arizona requirements),
- The original is lost or destroyed, and it was not destroyed by the decedent with the intent to revoke it, and
- The proffered evidence accurately shows the will’s terms so the court can enforce the decedent’s intent.
That evidence can include reliable copies (photocopies, scanned images), testimony from the will’s witnesses who recall signing and the will’s provisions, the testimony of the attorney who prepared or stored the will, and other documents or communications showing the decedent’s intent. The court may hold a hearing where witnesses testify under oath.
3) What the court can do
If the proponent meets the burden of proof, the court can admit a copy or other evidence of the will and proceed to probate it as the decedent’s last will and testament. If the court finds the decedent revoked the will, the estate will be distributed under Arizona’s intestacy rules (or under any later valid will).
4) Practical examples (hypothetical)
Example A — Accidental loss: Maria kept her signed will with her attorney. After she died, no one can find the original; a photocopy exists and both attesting witnesses can testify that Maria signed the document and that she did not intend to revoke it. The personal representative files a petition to probate the will as a lost will and offers the copy plus witness testimony. If the court finds the evidence clear and convincing, it admits the will and follows its terms.
Example B — Intentional destruction: Jamal tears up his signed will and tells his spouse he is revoking it. After his death, someone finds fragments of the document. Under Arizona law, because Jamal destroyed the will with the intent to revoke, the courts will treat it as revoked. The estate will be settled under intestacy or any later valid will.
5) Where to file and what procedure to expect
Typically the proponent files a petition for probate (often called a petition to admit a will to probate or to probate a lost will) in the superior court of the county where the decedent resided. The court will notify interested persons, hold a hearing if needed, and decide whether to admit the will based on the evidence. See the Arizona Judicial Branch probate resources for local forms and procedures: https://www.azcourts.gov/selfservice/ProbateForms.
6) Burden of proof and contested cases
The proponent must meet a high evidentiary standard (typically clear and convincing evidence) to admit a will when the original is not before the court. If family members or other heirs contest the will’s existence or validity, expect litigation. Disputes often turn on witness credibility, documentary evidence, and any records showing the decedent’s intent.
7) Consequences if proof fails
- If the court does not admit the lost will, and there is no other later valid will, the estate will be distributed under Arizona’s intestacy statutes (Title 14).
- If the court finds the decedent revoked the will by destructive act with intent to revoke, the revoked will has no probate effect.
Helpful Hints
- Act quickly. Locate original documents, contact the drafting attorney, and secure any copies before they are lost or destroyed.
- Search common storage: attorney file, safe deposit box, home safe, digital backups, cloud storage, email attachments, or where the decedent kept important papers.
- If you find only a copy, preserve it and note where and how you found it. Photocopy and scan the copy immediately and keep the originals of any surrounding correspondence.
- Find and get written statements from the attesting witnesses and the attorney who prepared the will. Witness testimony is often critical when the original is missing.
- Gather other supportive evidence: earlier drafts, emails or notes showing the decedent’s intent, proof that the decedent did not tell others they revoked the will, or contemporaneous bills or records referring to the will’s terms.
- If destruction is alleged, collect evidence about who had access to the will and any statements about revocation.
- Notify and communicate with likely heirs early to reduce surprise and potential disputes. Rule-based notice and timelines may apply in probate court.
- Consider hiring a probate attorney in Arizona early. Lost-will hearings can be fact-intensive and contested; an attorney can prepare petitions, gather admissible evidence, and advise on strategy.
- Check the Arizona probate forms and local court rules for filing requirements: Arizona Probate Forms.
If you want help finding an Arizona probate attorney or preparing a petition to admit a lost will, a local attorney can evaluate your specific facts and court requirements.