Detailed Answer
Short summary: In Delaware, the original will — the single paper (or set of papers) that the testator actually signed and that includes any witness or notary attestation — is normally required to open probate. To confirm you have the original, look for original signatures, witness attestation language, and any self-proving affidavit or notarization. If you cannot locate an original, Delaware law provides ways to try to admit a copy if the original is lost or destroyed. The Delaware Code that governs wills and probate matters is Title 12. See Delaware Code, Title 12 and the Delaware Courts website at courts.delaware.gov for general probate information.
1. What counts as the “original” will?
The original will is the actual physical document (or physically connected papers) that the testator signed. Originals commonly show the testator’s signature plus the signatures of the required witnesses and sometimes a notary. A self-proved will usually has a sworn affidavit signed by the witnesses and notarized; that affidavit is part of the original package and makes probate faster.
2. How to inspect the document to see if it is likely the original
- Check for original ink signatures. Originals normally show pen pressure, strokes, and ink variation. Photocopies look uniform and flat.
- Look for witness signatures and a typical attestation clause (language saying the witnesses saw the testator sign or heard the testator declare the document to be their will).
- Look for a notary stamp/seal and a self-proving affidavit. A notarized affidavit attached to the will often has raised ink or an embossed seal.
- Check the paper: originals may have watermarks, different paper stock, or other tactile features that copies lack.
- Search for page numbering and any handwritten corrections or marginal notes that look original rather than photocopied.
3. Ask practical questions about chain of custody
Who gave you the document? Where was it kept? Did an attorney prepare it? If the will came from a lawyer’s file, ask the lawyer for the original or for confirmation that the attorney holds the original (and whether they filed it with any probate court or safe-deposited it). If it came from a family member, ask where they found it (home desk, safe-deposit box, personal papers).
4. If you only have a copy, do not alter it — preserve it
Keep the copy in a safe place and avoid marking it. Note who had access to the document and when. If someone claims the original is missing, that information will be important if a court must decide whether to admit a copy.
5. How Delaware probate courts treat originals and copies
Probate courts generally prefer to receive and admit the original will. If the original cannot be found, Delaware law allows admission of a copy in some circumstances if you can show the original was lost or destroyed and the copy is authenticated. That process typically requires testimony or other evidence about the will’s contents, the circumstances of the loss, and proof that the copy accurately represents the original. See Delaware Code, Title 12 for governing statutes and procedures: https://delcode.delaware.gov/title12/.
6. When to get professional help
If the validity of the will or the question of whether a document is the original could spark a dispute (for example, multiple competing documents, allegations of forgery, or a missing original that someone else controls), consider the following:
- Contact the attorney who prepared the will. They may confirm whether they hold the original or know where it is.
- Consult a probate attorney experienced in Delaware estate matters. They can advise about filing the will for probate, proving a lost will, or seeking a court order to inspect a claimed original.
- A forensic document examiner can analyze signatures and ink to help determine whether signatures are original. Courts sometimes accept such reports as evidence.
- If someone refuses to produce an original they control (for example, a lawyer or bank), an attorney can advise on subpoenas, depositions, or motions to compel production in Delaware courts.
7. Filing the will with the court
If you believe you have the original and you need to start probate, file the will with the appropriate Delaware court or office as directed by local rules. If you only have a copy, an attorney can explain the process for seeking admission of a copy and the evidence Delaware courts will require. Refer to general probate resources at Delaware Courts and the statutes at Delaware Code, Title 12.
8. Quick checklist to confirm originality
- Do you see original ink signatures (testator and witnesses)?
- Is there a notary signature or self-proving affidavit attached?
- Does the paper show physical signs of an original (ink variation, embossing, watermark)?
- Can the person who provided the document explain where the original was stored?
- Can the preparing attorney confirm whether they hold the original?
- Is anyone withholding a document that might be the original?
Helpful Hints
- If an attorney prepared the will, that lawyer is often the quickest route to confirming whether the original exists.
- Many banks and attorneys use safe-deposit boxes or client files for originals; check those first.
- A self-proved will speeds probate in Delaware because the affidavit helps establish the will’s validity without calling witnesses to testify in court.
- Keep careful records of who handled the document and when. Chain-of-custody facts help if you must prove a copy’s authenticity.
- Do not sign, initial, or alter the document yourself. Even minor marks can create disputes about authenticity.
- If multiple copies exist, compare them for handwriting differences, missing pages, or alterations. The best evidence is the original.
- If the original is missing and cannot be found, act promptly. Delay can make it harder to collect witness testimony or other evidence needed to admit a copy in court.
Disclaimer: This article explains general information about wills under Delaware law for educational purposes only. It is not legal advice. Laws change and every situation is different. Consult a licensed Delaware attorney to address specific questions or to help with filing, probate, or disputes.