What Happens if You Can’t Find a Lost Will in Virginia?

When a loved one’s will cannot be found after their passing, the frustration and uncertainty can weigh heavily during an already emotional time. Your parent might have shared plans to pass down a treasured heirloom, but now—despite your efforts to honor their intentions—the will that expressed those wishes seems to have vanished.

If your search for the will has been unsuccessful, you may be left wondering what steps to take when the original cannot be found. In Virginia, the law outlines specific options for addressing a lost will, including proving its contents or resolving the estate through intestacy laws. In this blog, a probate attorney from McCarthy & Akers explains how Virginia handles a lost will and what you can do next.

How Virginia Law Handles Lost Wills

Virginia law assumes that if a will cannot be found after the testator’s death (the testator is the person who created the will), it was likely destroyed to revoke it, or cancel its effect. This presumption is strongest if the lost will was last in the testator’s possession. However, if the original will was stored somewhere secure—such as an attorney’s office or a safe deposit box—the presumption weakens. In these cases, the burden of proof may shift to those claiming the will was revoked.

To overcome the presumption of revocation, you must present clear and convincing evidence that:

• The will was properly executed and signed
• The contents of the will are known
• The original will was not intentionally destroyed by the testator

Virginia Code § 64.2-410 governs this process, requiring evidence that demonstrates the testator intended for the will to remain valid, even if the original cannot be located.

Steps to Search for a Lost Will

Before concluding that a will is lost, conduct a thorough search in likely storage places. Start by checking the deceased’s home, including safes, desk drawers, and filing cabinets. If the will isn’t there, consider accessing their bank safe deposit box, though court approval may be required. The local circuit court is another place to check, as some individuals deposit their wills there for safekeeping. If the deceased worked with an estate lawyer, contact their office to see if a copy was retained. Finally, reach out to family members or the executor, as they might have information about the will’s location.

How to Get a Lost Will Recognized by the Court

If the original will cannot be located, Virginia law allows you to petition the circuit court to prove its terms through probate. This process requires presenting evidence that meets the high standard of clear and convincing proof, which is stricter than the typical standard in civil cases.

To begin, you must:

• File the necessary paperwork with the circuit court, detailing evidence of the will’s existence and contents.
• Notify all interested parties, including heirs who would inherit under Virginia’s intestacy laws, to ensure they have an opportunity to participate or contest the petition.

The evidence you present might include:

• A copy of the will, if one exists.
• Notes or drafts from the testator’s attorney, if an attorney assisted in preparing the will. Testators often keep the original will themselves for privacy or easy access, though attorneys may retain copies or related records.
• Witness testimony, handwritten drafts, or statements from those familiar with the testator’s intentions for DIY wills.
• An explanation for why the original will is missing, such as accidental destruction or loss.

The court will carefully evaluate the evidence to determine whether the terms of the will can be recognized and followed during the probate process.

What Happens When No Will Is Found?

If no valid will can be recognized, the estate will proceed through probate without a will under Virginia’s intestacy laws. Under Virginia Code § 64.2-200, the estate passes to the closest living relatives in the following order:

• If married with no children: The spouse inherits everything.
• If married with children from the current marriage: The spouse and children share the estate.
• If married with children from a previous relationship: The spouse inherits one-third, and the children inherit two-thirds.
• If unmarried with children: The children inherit everything.
• If unmarried with no children: The parents inherit the estate.

Intestacy laws can create challenges, particularly in blended families. For example, stepchildren are not considered heirs unless legally adopted, which can lead to disputes or outcomes that may not reflect the deceased’s wishes.

Protect Your Will and Simplify the Future for Your Loved Ones

While addressing a lost will is challenging, it’s a reminder of the importance of safeguarding your own estate plans. Taking proactive steps now can help ensure your wishes are honored and prevent unnecessary complications for your loved ones.

Store your will in a secure location, such as a safe deposit box or a home safe, to protect it from loss or damage. Some Virginia jurisdictions also offer the option to deposit your will with the circuit court for safekeeping. Inform your executor of the will’s location, and consider keeping a backup copy (even though not legally binding) to provide additional security. Finally, review the will’s storage annually to ensure it remains accessible and reflects your current intentions.

Losing a will is both an emotional and legal challenge, but Virginia law provides pathways to address the situation. Whether proving the existence of a lost will or distributing assets through intestacy laws, acting promptly and following the proper legal steps can make the process smoother. By planning ahead and securing your estate documents, you can help your loved ones avoid uncertainty in the future.

McCarthy & Akers – Your Trusted Legal Partners for Lost Will Cases in Virginia

The uncertainty of a lost will can create emotional and legal challenges, but knowing your next steps can make all the difference. At McCarthy & Akers, we provide compassionate and knowledgeable support to help you resolve the matter efficiently and in accordance with Virginia law.

Our probate attorneys will review your situation to determine the best course of action, whether it involves proving the terms of the lost will or addressing estate matters under Virginia’s intestacy laws. We assist with gathering evidence, such as testimony from witnesses or copies of the will, so all necessary paperwork is prepared and filed correctly. If court hearings are required, we’ll represent you every step of the way, advocating for the resolution that best honors your loved one’s intentions.

With offices in Strasburg, Woodstock, Front Royal, Winchester, Manassas, and Warrenton, we’re here to help families across Virginia. Call us today at (540) 722-2181(540) 722-2181 or complete our confidential online form to schedule your consultation. Take the first step toward resolving your loved one’s estate with confidence.

Copyright © 2024. McCarthy & Akers, PLC | Estate Planning Attorneys. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

McCarthy & Akers, PLC | Estate Planning Attorneys
302 W Boscawen St.
Winchester, VA 22601
(540) 722-2181(540) 722-2181
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