Filing a parent’s will in Indiana when the original is withheld

Detailed Answer

If a person holding your deceased parent’s original will refuses to give it to the probate court, you still have legal options in Indiana. The probate process focuses on proving the decedent’s wishes and distributing the estate according to law. Below are the typical legal steps and practical actions a person should take to get a will filed or to have the court admit a copy when the original is not produced.

1. Confirm jurisdiction and locate the original

File for probate in the county where the decedent lived at death. Before filing, make a reasonable search for the original will: contact the decedent’s attorney, check safe deposit boxes, review personal papers, and talk to close family members. If you find a copy (photocopy, scanned file, or a copy held by the decedent’s lawyer), preserve that copy and any related records.

2. Talk to the probate court clerk

Contact the probate clerk in the proper Indiana county and explain the situation. Clerks can explain local filing requirements and may provide forms or guidance about petitions to admit a will or to compel production. Indiana’s probate law is in the Indiana Code, Title 29 (Probate). See general code resources at: https://iga.in.gov/laws/2024/ic/titles/29 and the Indiana Probate Rules at: https://www.in.gov/judiciary/rules/probate/.

3. Ask the holder to produce the original — use formal process if needed

If an individual (for example, a sibling or step-sibling) has the original but refuses to turn it over, you can ask the court to require production. Typical tools include:

Petition to the probate court asking it to order production of the will.
Subpoena duces tecum requiring the person to bring the original will to court.
Motion for an order compelling production and, if they disobey, a request that the court hold them in contempt.

The probate court has authority to manage probate proceedings and to enforce court orders. Consult the probate clerk or a lawyer about the correct petition and service procedures in your county.

4. If the original cannot be produced: petition to admit a copy or to probate a lost will

If the original cannot be produced because it is lost, destroyed, or withheld and you cannot obtain it, Indiana law allows courts to admit a will despite the absence of the original under appropriate proof. You generally must prove two things:

That the original existed and was valid (signed by the decedent with required formalities).
That the decedent did not revoke the will.

Evidence can include a photocopy of the will, testimony from people who saw the original or who witnessed signing, correspondence from the decedent referring to the will, or a copy held by the decedent’s lawyer. The court will evaluate credibility and may require evidence by affidavit or live testimony. If you plan to ask the court to admit a copy or to probate a lost will, prepare to explain how the original went missing and present clear proof of the document’s contents.

5. Remedies if the holder refuses or destroys the will

Where someone intentionally withholds or destroys an original will, the court can impose remedies. Possible outcomes include:

Compelled production by court order (subpoena and contempt sanctions if disobeyed).
Admitting a copy as the best evidence available, if the copy and other proof satisfy the court.
Civil sanctions against a person who wrongfully withholds or destroys a will (including possible monetary sanctions or an adverse presumption about the decedent’s intent).

6. Practical filing steps (typical)

Obtain the certified death certificate.
Collect any copies of the will, communications with the decedent’s attorney, and witness names.
File an initial probate petition or a petition specifically to admit a lost or copied will with the probate court clerk.
Serve notice and, if needed, serve a subpoena on the person who has the original demanding production.
If the original is not produced, request a hearing to admit the copy or to determine the appropriate remedy.

7. Timing and urgency

Act promptly. Delays can make it harder to locate witnesses or to preserve evidence. While some statutes impose specific deadlines for creditor claims or estate administration tasks, the immediate imperative is to start the probate process as soon as possible to protect estate assets and rights. For details, review Title 29 of the Indiana Code: https://iga.in.gov/laws/2024/ic/titles/29.

8. When to get an Indiana probate attorney

If the holder refuses to cooperate, or if the facts are contested (e.g., allegations of destruction or improper revocation), consult a probate attorney in Indiana without delay. An attorney can prepare the correct petitions, handle subpoenas, and represent you at hearings. If cost is a concern, ask the probate clerk about self-help resources and local legal aid organizations.

Key legal references

Indiana Code, Title 29 (Probate) — general statutory framework: https://iga.in.gov/laws/2024/ic/titles/29
Indiana Probate Rules — procedural rules governing probate practice: https://www.in.gov/judiciary/rules/probate/

Disclaimer: This article explains general information about Indiana probate procedures. It is not legal advice and does not create an attorney-client relationship. For advice specific to your situation, consult a licensed Indiana attorney.

Helpful Hints

Preserve any copies of the will, emails, scanned files, or photos immediately and make multiple backups.
Write down exactly what the person holding the original told you (date, time, content) and keep any text messages or emails as evidence.
Ask the decedent’s attorney (if any) for a copy. Many attorneys keep originals or copies of wills for clients.
Check safe deposit boxes and bank safe-deposit records—banks sometimes require a court order to open a box after death.
Use certified mail or process server service when formally requesting documents so you have proof of service and receipt.
If you must file without the original, prepare affidavits from witnesses who saw the will or who can testify about the decedent’s intent and the document’s contents.
Document efforts to obtain the original (dates and methods of contact). The court will want to see good-faith attempts to locate the document.
If the other person threatens to destroy or hide the document, contact the court right away and consider requesting emergency relief.
Keep communications civil. Heated exchanges can complicate court proceedings and make judicial relief harder to obtain.
Ask your probate clerk about sample forms and whether your county has local procedures or simplified filings for uncontested matters.