Detailed Answer — How Illinois Handles a Lost or Destroyed Will
This section explains what typically happens when a will cannot be found after the maker (the testator) has died under Illinois law. It describes presumptions, how a court treats copies, and the process to try to admit or reconstruct a will in probate court.
1. The basic legal presumption
Under Illinois law, if an original will cannot be found after the testator’s death and the will was last known to be in the testator’s possession, the law presumes the testator revoked it. See 755 ILCS 5/6-2 for the statutory language. That means the probate court starts from a presumption that the missing will was intentionally destroyed or cancelled by the testator.
(Statute: 755 ILCS 5/6-2.)
2. Rebutting the presumption — showing the will still reflects the testator’s intent
The presumption of revocation is rebuttable. If you can show credible evidence that the will was lost, stolen, or destroyed by someone else — or that the will remained in a place beyond the testator’s control — a probate court may allow probate of the will or otherwise give effect to its terms. Evidence can include testimony from witnesses who saw the original will, testimony about where the will was kept, copies of the will, attorney or bank records showing the will was filed or stored, or contemporaneous communications from the testator that show continued intent.
Illinois courts will examine whether the testator intended to revoke the will. A simple loss that lacks proof of the testator’s intent to revoke is not automatically treated as a revocation.
3. Copies and reconstruction
If you have only a copy of the will, Illinois courts may consider that copy as evidence of the decedent’s testamentary intentions. But admitting a copy is harder than admitting an original. You typically must present clear and convincing evidence of the will’s terms and authenticity. That evidence can include witness testimony (for example, the attesting witnesses who signed the will), attorney files and drafts, photocopies, emails, or records from a safe-deposit box or filing service.
When the original is lost or destroyed and the court finds sufficient proof of the will’s contents and validity, the court can admit a copy or enter an order that carries out the will’s terms as proved. This is sometimes called reconstructing the will for probate.
4. When destruction counts as revocation
If the testator destroyed the will (for example, tearing it up or burning it) with the intent to revoke it, Illinois treats that as a valid revocation. The key question is intent. Physical destruction without intent to revoke (for example, accidental damage) does not necessarily revoke a will if other evidence shows the testator did not intend revocation.
5. Practical steps the court will take
- Review testimony from witnesses who saw the original will or knew how it was stored.
- Examine documentary proof: attorney copies, drafts, correspondence, or a safe-deposit box receipt.
- Decide whether the presumption of revocation applies and whether the presumption has been rebutted by clear and convincing evidence.
- If satisfied, the court may admit a copy or reconstruct the will and order probate consistent with the proved terms.
6. Relevant statute
The key Illinois statute on lost or destroyed wills and proof is 755 ILCS 5/6-2 (probate of wills when the original is missing). You can read the statute here: 755 ILCS 5/6-2.
Common Scenarios and How Courts Usually Respond
Scenario A — Will last seen in testator’s home and is now missing
Court likely starts with a presumption of revocation. To overcome it, present witnesses who saw the will after the last time the testator would have revoked it, or documentary evidence showing the will’s existence and the testator’s intent not to revoke.
Scenario B — Original destroyed in a fire that took the testator’s home
If the destruction was accidental and not accompanied by proof the testator intended to revoke, evidence such as attorney copies, drafts, or witness testimony can allow probate of the will’s terms.
Scenario C — A copy is found but not the original
A copy helps, but the court typically needs supporting evidence that the copy accurately reflects the original and that the testator did not revoke the will.
Next Steps if You Discover a Lost or Destroyed Will
- Stop. Preserve any evidence. Do not discard copies, drafts, e-mails, or related documents.
- Contact the attorney or law firm you think prepared the will. They may have the original or a file copy, or notes that confirm the will’s terms.
- Identify and preserve witnesses who saw the original will or knew how the testator stored it.
- Check for a safe-deposit box, bank copies, or records with the probate court or other filing services.
- File a petition with the appropriate Illinois probate court to admit the will or to reconstruct it. A probate attorney can prepare the necessary pleadings and evidence presentation.
Helpful Hints
- Act quickly. The longer you wait, the harder it becomes to find witnesses and documentation.
- Collect copies: photocopies, scanned files, drafts, e-mails, and attorney file notes are all useful.
- Secure evidence of where the will was last kept: a ledger, instructions to an attorney, or a safe-deposit box receipt.
- Talk to the will preparer. Attorneys often keep a client file or an extra executed copy or a record that the will was signed on a particular date.
- Prepare witness statements. People who witnessed the signing or who saw the original will can provide powerful evidence.
- Don’t assume loss equals revocation. Courts examine intent and supporting proof.
- Consider mediation if family conflict arises. A contested probate can be expensive and slow.
How an Attorney Can Help
An Illinois probate attorney can assess the strength of your evidence, gather and organize documents, take witness statements, and file the appropriate petition to admit a copy or reconstruct a lost or destroyed will. If someone alleges revocation, an attorney can help present rebutting evidence to the court.