by Morgan Wiener
One of the many complexities that can arise in the probate process is what to do when a decedent’s original will cannot be found. Although it may be tempting to simply file a copy of the will and seek to admit that to probate, beware! Copies of wills may not be admitted to informal probate. Instead, even if a challenge to the document is not expected, copies of wills must be submitted for formal probate.
C.R.S. § 15-12-402(3) provides for the formal probate of a will that “has been lost or destroyed, or for any other reason is unavailable.” Under this section, the will may be admitted to probate if (1) the fact of execution is established as provided in the Colorado Probate Code, (2) the contents of the will are established to the satisfaction of the court, and (3) the court is satisfied that the will has not actually been revoked by the decedent (remember that, when a will last seen in the decedent’s possession cannot be found, there is a rebuttal presumption that the decedent destroyed and revoked the will).