The Importance of Original Wills in Virginia Probate

When it comes to probate in Virginia, one crucial detail often surprises many: only the original of a Last Will and Testament (that version which bears a “wet” signature – not a photocopy) can be submitted for recordation and/or accepted to probate.

The Lost Will Dilemma

But what happens if the original Last Will and Testament can’t be located? This is where things get interesting. Virginia law establishes a rebuttable presumption that if the original Will was last known to be in the testator’s possession and cannot  be found after their death, it was intentionally revoked or destroyed by the testator (the person making the Will/the decedent) during his/her lifetime.

This presumption may be challenged through petition of the Court and presentation of evidence; however, the costs of pursuing this action are often quite high and will require the presentation of clear and convincing evidence that the testator did not intend to revoke the Will being submitted to probate, and that the loss/misplacement/absence of the signed original is/was accidental (*note that you don’t have to prove what specifically happened to the original Will, just that it wasn’t intentionally destroyed or revoked). This is a high bar to clear and underscores the importance of safeguarding the original document.

Given these legal realities, it’s crucial to store your original Will in a secure, known location and to inform your executor and other trusted individuals of its whereabouts. If you do intend to revoke or amend  your Will, do so explicitly to avoid confusion as to your intent. 

While it may be tempting to pursue a DIY approach (due to costs, convenience, etc.), the time to determine if your Will (or other legal document(s)) is enforceable is not when it is being presented for probate.  Consult with a qualified attorney for personalized advice on your estate planning needs and confidence that your final wishes will be carried out as intended.