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How to Admit a Lost Will to Probate in Illinois

Updated on
March 3, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we will show you how to admit a lost will to probate in Illinois. Our Illinois probate lawyers will address the following:

  • What is the legal definition of a lost will?
  • How long does a decedent’s family have to locate a will in Illinois?
  • What does the court assume when a will is lost in Illinois?
  • Can you submit a copy of a will to probate in Illinois?
  • How to probate a lost will in Illinois
  • How to prevent a lost will scenario

What is the legal definition of a lost will?

When family members of a deceased person are unable to locate a will, either because it’s unknown if a will was completed or because its location is unknown, the will is considered lost. This is an issue for heirs, beneficiaries, and creditors because only the original copy of a will can be admitted to probate in Illinois.

How long does a decedent’s family have to locate a will in Illinois?

A will must be filed within 30 days of a person’s death in Illinois. Though the grieving process is strenuous, avoid putting off searching for a will if its location is not known. On the other hand, it is a felony to purposely not file a known will in Illinois. 

What does the court assume when a will is lost in Illinois?

If a will cannot be located in Illinois, the court presumes that the testator revoked the will before their death. A will can be lawfully revoked by being burned, shredded, or otherwise destroyed. Unless there is clear and convincing evidence that the will was not revoked by the testator, the presumption will stand indefinitely. 

Can you submit a copy of a will to probate in Illinois?

A paper or electronic copy of a will cannot be presented to a court in Illinois to initiate probate. But if ALL heirs and legatees are in agreeance about the legitimacy of a copy, the court may permit admission. 

How to probate a lost will in Illinois

Though Illinois assumes lost wills are revoked wills, it is possible to probate a lost will. However, doing so will require the decedent’s heirs to prove that, even though it is not present, the decedent’s will is valid. Examples of such situations include:

  • The decedent passed in a house fire, which also destroyed their will
  • A will was created and stored by the decedent but is now missing for unknown reasons
  • The will was destroyed after the decedent’s death

The last scenario requires heavy proof and evidence. Altering or destroying a will after death can be prosecuted as a felony.

Essentially, for an heir to probate a lost will, they must be able to demonstrate that the decedent was not involved in destroying, removing, or hiding their will and that the terms listed in their will were their final wishes.

How to prevent a lost will scenario

It is always recommended to inform close relatives of the location of a will, such as a spouse. At the same time, avoid leaving a will out in the open where it may cause disputes or encourage an heir to alter or destroy it before it can be filed when the time comes. Wills should be stored in a logical, safe, and secure place, like a safety deposit box.


How to Admit a Lost Will to Probate in Illinois
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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