People create wills, so they can direct what happens to their property after they die. Wills are a way for people to protect their loved ones, and without a properly executed will, property passes through Louisiana’s intestacy laws, and the person who died doesn’t have a say in property distribution.
After the testator (the person who created the will) dies, an original will must be filed in court before any property can be distributed. But what happens if you are confident that a will was made, but you can’t find it? Without the original will, you will need the help of an experienced Louisiana succession lawyer to make sure that your loved one’s wishes are honored and that the beneficiaries are protected.
Proving the Existence of Missing Wills
When an original notarial will cannot be immediately located, the first step is to have an attorney try to locate it. An attorney may try to find the original notarial will by contacting the:
- Notary to see if the notary has the original will
- Louisiana Secretary of State’s Office to see if the testator registered the will in the state’s central registry of wills
- Parish to see if the will was filed with the clerk of the court or in the notarial archives.
However, many of these searches will end without an original will.
If the attorney’s search ends without an original copy of the will to present to the court, there is a legal presumption that the original will was destroyed and that the testator intended to revoke it. A copy of the will is not enough to undo this presumption. Instead, a copy of the will can only be submitted to the court instead of an original will if the person submitting it can prove:
- The testator made a properly executed will. The will must be legally valid in the state of Louisiana.
- What was in the will. The contents of the will must be clearly established.
- That the original will was never revoked. Specifically, you will need to prove that a diligent search was made to find the original will, and even though it could not be found, the testator never revoked it. Often, this is done by submitting an affidavit of someone who had personal knowledge that the original will existed, and it was lost or destroyed after death by an event such as a fire, hurricane, or theft.
Additionally, even though the attorney should have asked the notary who signed the testator’s will to look for it, Louisiana law also requires the attorney to ask the court to direct a notary of the parish to search for the original will. If the notary does not have the original will, some courts will accept an affidavit from the notary if the affidavit states that:
- The notary signed the original will
- The notary has a copy of the testator’s will
- The copy of the will being submitted to the court is the same as the notary’s copy.
A notary’s affidavit together with an affidavit from someone who knows that the original will existed after the testator’s death and how it was lost or destroyed, are often enough for a court to accept the will without an original copy.
If the Missing Will Was Not a Notarial Will
Notarial wills are not the only types of wills recognized in Louisiana. If the original will was an olographic will, the court should appoint a notary to look for the will in the public registries. If the notary doesn’t find an original will, you may submit your copy of the will with an affidavit that states you know the testator’s handwriting, and you believe the testator handwrote the olographic will.
If you know there was a will, but you do not have a copy of it, you may still be able to submit evidence about the will if you read the will and remember its contents. This can be difficult to do and should only be done with the help of an attorney.
Let Us Help You Honor Your Loved One’s Wishes
If you can’t prove the contents of the will and convince the court that the original will was not revoked, intestacy laws will apply. You may want to avoid this if your loved one went through the time, effort, and expense to execute a will and direct where his property should go after his death. Contact an experienced New Orleans succession lawyer today to discuss your legal options and how you can help honor your loved one’s wishes.