QUESTION

Filed an affidavit due to only having a copy of the will vs the original.

Asked on Mar 01st, 2021 on Wills and Probate - Georgia
More details to this question:
Probate court advised, โ€œIt does appear that the petitioner filed an affidavit as to attempts to locate the Will, but the affidavit does not address the issue of revocation.โ€ What does that mean exactly? I called the law office, checked probate court vaults, searched through the entire house and only found a copy of the original will.
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3 ANSWERS

Probate Litigation Attorney serving Lawrenceville, GA at Robert W. Hughes & Associates, P.C.
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If you cannot find the original will, the law assumes it was revoked. To probate a copy of a will, you gave to explain to the court what probably happened to the original and how you know the deceased person did not revoke it. You probably need to hire a lawyer to help with this complicated area of law. Look for an attorney specializing in probate law.
Answered on Mar 13th, 2021 at 6:01 AM

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Wills Attorney serving Alpharetta, GA
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Under Georgia law, if an original Will cannot be located, and if the Will was known or believed to have been in the deceased person's possession before his or her death, then the fact that the original Will cannot be found raises a rebuttable presumption that the person who wrote the Will destroyed the original, intended to revoke the Will. The probate court is telling you that your affidavit failed to address and attempt to rebut that presumption. In order to rebut the presumption that the Will was revoked, you need to provide evidence that supports a conclusion that the deceased person may have simply lost track of the Will and not realized that it was missing. Items that might qualify would be affidavits from people to whom the decedent spoke about having a Will before his or her death, stating that the decedent made remarks that caused the listener to believe that he or she had a Will in effect and that it was the same Will for which the copy is presented. In a lot of cases, it actually makes sense, when an original Will cannot be found after an extensive search, to run with the presumption, and act as if the decedent dies intestate, instead of trying to probate a copy of a Will. However, if you believe, on good evidence, that the decedent likely did not destroy the original Will intending to revoke it, then you need to provide that evidence to the probate court when you attempt to probate the copy. So if you have that kind of evidence, you'll need to present it to the probate court now. I urge you to have an attorney help you with that process. Best wishes to you.
Answered on Mar 02nd, 2021 at 5:24 AM

This answer is being provided as general information and not as legal advice. No attorney-client relationship is created by this answer.

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Wills Attorney serving Austin, TX
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The affidavit should have addressed whether in the circumstances you described Georgia law would treat the Will as though it had been revoked (the original destroyed) or allow you to probate (prove) a copy of the Will.
Answered on Mar 02nd, 2021 at 5:11 AM

This is general information. It cannot substitute for a personal consultation with an attorney. It is not intended to be legal advice or imply an attorney-client relationship.

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