Lost or Damaged Will Sent to the Courthouse — Georgia Probate Steps and Guidance

Overview. If the original signed will cannot be located because it was lost or damaged while being mailed to the courthouse, Georgia law allows the probate court to consider secondary evidence and may admit a copy or other proof of the will’s contents. The key issues the court will decide are whether the will was validly executed, whether it was revoked, and whether the proponent can prove the will’s contents by clear and convincing evidence.

How Georgia courts treat a missing or destroyed original will

Georgia’s statutes governing wills and probate focus on the requirement that a will be properly executed and that any revocation be proven. If the original is missing, a person seeking probate can ask the superior court to admit a copy or other evidence of the document. The court will require proof that the original existed, that it was duly executed, and that it was not revoked.

What the proponent must prove

• Due execution. The proponent must show the will was signed by the testator and witnessed in the manner required by Georgia law (see Georgia Code, Title 53 — Wills). A self-proving affidavit or notarized attestation included with the will is strong evidence of execution.
• Loss or destruction without revocation. The proponent must explain how the original went missing (for example, lost in the mail) and show there is no evidence the testator intentionally revoked the will (for instance, by tearing it up or creating a later valid will).
• Contents of the will. The court will consider a copy of the will, testimony from witnesses who saw the original, drafts, copies, email or digital versions, and any other evidence that establishes the will’s provisions.

Standard of proof

Courts generally require clear and convincing evidence to admit a lost or destroyed will when the original cannot be produced. This is a higher standard than a mere preponderance of the evidence. You will likely need credible witness testimony and corroborating documents showing (1) the will was properly executed and (2) the testator did not revoke it.

Practical steps to take right away

1. Contact the clerk of the superior court where you intended to file the will. Explain the loss and ask about the court’s local procedure for probate of a missing original.
2. Check mailing/tracking records and contact the postal service or courier for a trace or proof of delivery failure. Save written responses.
3. Gather all copies and related documents: photocopies, scans, drafts, email transmissions, a self-proving affidavit, and any notes from the testator about the will.
4. Identify and line up witnesses who saw the testator sign the original will or who can attest to its contents and the testator’s intent.
5. File a petition with the probate court to admit the copy or to take testimony and other evidence about the lost original. Provide the court with an affidavit explaining the loss and attaching all supporting materials.

What the court may order

The court may admit a copy to probate if the proponent meets the required proof burden. The court could also require additional safeguards, such as:

• Bond or other security if concerns exist about validity.
• Notice to interested parties so heirs and potential beneficiaries can object.
• An evidentiary hearing where witnesses testify under oath about the will’s execution and contents.

Potential challenges

Interested parties (heirs or beneficiaries under intestacy) can contest admission, arguing the will was revoked, forged, or altered. Expect contested matters to require more evidence and a full hearing.

Statutory reference

For statutory background, see Georgia Code — Title 53 (Wills and decedents’ estates). The official Georgia General Assembly site provides the Code for review: Georgia Code, Title 53 (Wills). When you prepare to file, ask your court clerk which specific sections and procedures the local superior court follows for admitting lost or destroyed wills.

Short hypothetical example: A testator signs a will and mails the original to the local superior court for safekeeping. The envelope is lost by the carrier and never reaches the courthouse. The testator later dies. The named executor has a scanned copy, the witnesses who attested to the signature are available to testify, and there is no later will. The executor petitions the court to admit the scanned copy, provides witness affidavits confirming execution, and explains the loss in an affidavit. If the court finds the proponent met the clear-and-convincing standard and no convincing evidence of revocation exists, the court may probate the copy and permit administration under the copy’s terms.

When to hire an attorney

If the original will is lost in the mail, consult a probate attorney promptly. An attorney can help collect evidence, draft a petition to admit a copy, represent you at hearings, and respond to objections from interested parties. Even when no one objects, an attorney can speed the process and reduce risks of later challenges.

Disclaimer: This information is educational only and is not legal advice. It does not create an attorney-client relationship. Laws change and outcomes depend on specific facts. Consult a licensed Georgia attorney before acting.

Helpful Hints

• Act quickly. Preserve copies, tracking info, and witness contact information as soon as you discover the original is missing.
• Request formal written confirmation from the postal carrier or courier about delivery attempts or loss; keep that document for court.
• Keep all versions of the will (drafts, photocopies, emails) and any notes from the testator about the will’s intent.
• Obtain sworn affidavits from the witnesses who saw the testator sign the will; their testimony is often crucial.
• Do not destroy copies or alter drafts after learning of the loss; doing so can create suspicion of tampering or fraud.
• Provide full, honest disclosure to the court about how the original went missing; concealment can lead to a denied petition or later reversal.
• Be prepared for a hearing. Bring original copies of all supporting documents and witnesses who can testify consistently under oath.
• If you are an interested party who objects, raise your concerns early and consult counsel to preserve any rights to contest probate.