Can I go to the probate court with an unsigned copy of a will and a signed codicil to the will to get letters testamentary?

Question

I cannot find a signed will, although I have an unsigned copy, for my mother. I do have a signed codicil to this will. Can I go to the probate court with these 2 documents, along with a death certificate, to get letters testamentary?

Vincent Liberti · Answer

Probably not, at least not with a material reason why the original is missing, like a fire of the home.  Otherwise, it is presumed that the Will was destroyed.  You would need to establish your mother's intent to destroy it or not to destroy it.  Have you considered a safe deposit box with a bank?  Maybe the Will is there.

Charles Perry · Answer

The probate court will require proof that the original will was signed and lost.  

A probate lawyer will be able to look at the unsigned copy of the will and the testament, tell you what else you need, and guide you through the process.  

In other words, it will be possible to open the probate using the documents you have, but you will need additional materials to get there.  The process requires a good amount of attention to detail.    

For this reason, I would strongly urge you to obtain counsel to help you through this process.  It will save you a good deal of time and aggravation.

Keven A. McKenna · Answer

You can file a petition and get a hearing. Then the judge will make a decision. You can get through the door.

Paul Nidich · Answer

Perhaps.  It really depends upon the particular court.

Jeffrey Gottlieb · Answer

An unsigned Will won't have any legal effect. The 'codicil' should be admitted if it was properly attested. The full terms may be open to construction at that point. You should consult with a lawyer to review the full situation.

George Mead · Answer

You absolutely need to consult with counsel on this issue. Unsigned Will are generally unenforceable. The effect of a singed codicil might arguable have the effect of reviving the Will, but you would need counsel to evaluate both writings.

David Strachman · Answer

You need a lawer to help you.

Frances Headley · Answer

If the codicil reaffirms all of the provisions of the will you should have no problem.  You should consult a probate attorney for assistance with the paperwork.

Gerald Bagazinski · Answer

The Probate Register will not accept this document. Therefore, you need to get the Probate Court's permission to file a lost will. 

Since you have a codicil to the will, a Petition to admit a lost or misplaced will be necessary to have the will and codicil admitted. 

The recitations in the original codicil should bolster the petition as they would identify the individuals who witnessed the original will. 

Affidavits from the witnesses should provide additional information that in fact the will was at one time properly executed. Another issue is to determine who the interested parties are and whether they consent to the admission of the document. 

The court will want to know how the  the will and codicil impacts the interest of the parties relative to whether the individual died intestate.

This is a relatively complicated matter and you should engage the services of an attorney to know the law and how it will be applied as well as how to get evidence properly entered to support the petition.  If you have any questions, please contact me.

Eric Smith · Answer

You will need to prove that the will was signed (does the codicil refer to the date of signing of the original will? That will help), and not intentionally destroyed. You will need testimony from someone present at the signing - the notary, the attorney, or ideally, one of the witnesses. The death certificate is irrelevant.

Michael Stafford · Answer

Yes you can. But the process is very involved and I would suggest that you consult with an attorny for guidance.

Victor Waid · Answer

Not, as the will is what is probated, not the codicil, as the codicil is a purported amendment, and in this case, the codicil amended nothing, as the will was not in existence at the time the codicil was executed. You will have to file a petition to administer the estate of the deceased.

Eric Lewis · Answer

It is possible, but no guarantee.

Brian Haggerty · Answer

98% no. An unsigned Will is nothing. It's possible that if the wording of the codicil is PERFECT this might be made to work, or the provisions of the unsigned document might form the basis for an agreement of the heirs as to the distribution of the estate. But your question refers to getting appointed personal representative, which as a child of the decedent you could do.  It's possible that, as PR, you might have luck finding the signed Will.

Richard Keyes · Answer

You should be able to do so because the codicil should qualify as the last will and testament.  

When you petition the probate court for letters testamentary, you will have to file the unsigned copy of the will and let them know that you cannot find the original.  

The codicil should have the date the will was signed.

James Frederick · Answer

You can try. My guess is that the court will at least need to hold a hearing to determine whether the Will can be admitted or not.  

If this was drawn up by an attorney, there is a decent chance the attorney might be holding the original. 

You might also check with the court to determine if the original was filed for safekeeping.  If you cannot locate the original, I would file a Petition to Commence Proceedings, Form PC 559.

Thomas Edward Gates · Answer

No.  The codicil has no standing since there is no original will that is valid.  You will need to probate the estate intestate.  You can use the will and codicil to distribute property per her wishes, however.

Edwin Fee · Answer

It certainly is worth trying.  If the codicil is valid, then arguably the codicil incorporates the unsigned will by reference.

Edward Armstrong · Answer

Under the circumstances you've outlined in your question the probate court will not grant you letters testamentary on the unsigned documents.  They will advise you to retain an attorney and to look into the process of proving up an unsigned document.  I would say the prospects for being able to do this are not all that good.

Michael Yeksavich · Answer

This is a good question.  The codicil itself might stand as will.  An unsigned will is no will.

Richard Kaplan · Answer

First, you can't go to probate court to do almost all of probate without an attorney.  Only through an attorney will Letters of Administration (which is what Letters-Testamentary are called in Florida) get issued.    

While you have a signed codicil, the unsigned copy is not probatable.  I had this case before.  However, if you can find a signed copy of the Will, you could probate that.    

You should go to the attorney who drafted it and very possibly they will have a least a signed copy.  That's one of the advantages of using an attorney.

Dera Johnsen-Tracy · Answer

Pursuant to Wisconsin Statute 856.17, if a will is lost, the court has the power to take proof of the execution and validity of the will and to admit the terms contained within the copy of the will to probate.  This may require a court hearing and testimony from the original witnesses who signed the will.  You should consult with a probate attorney regarding this matter.

Darin Christensen · Answer

Those documents, together with a petition for appointment as personal representative should work to get letters testamentary.

Dara J. Goldsmith · Answer

You should really consult with an attorney about assembling your petition for probate.  The issues you present are complicated and factually driven.

Monica H. Donaldson Stewart · Answer

An unsigned copy of the will is not a valid instrument; if the original cannot be located, there is a presumption that it has been destroyed. I recommend you speak with an attorney to discuss the options, which may include proceeding "intestate" (as if there is no will) or determining whether the codicil can stand alone.

John Brennan · Answer

You can try, but would be better off by seeking representation and going with counsel.  Is there anyone who would be anticipated to object?  Do you know how the executed will was lost?   You are welcome to call my office with details and for an appointment.

Leonard A. Kaanta · Answer

You can open a probate, but the may not recognize the willm you need an attorney.

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Can I go to the probate court with an unsigned copy of a will and a signed codicil to the will to get letters testamentary?

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