Can a Copy of a Will Be Admitted to Probate?
To open probate of an estate in Maryland, the original of the deceased person’s last will and testament must be provided to the register of wills. If the original of the will is lost or destroyed, a copy of a will may be admitted to probate if specific, complex legal requirements are met. If you are in a situation where the original will of a decedent is not available, and you wish to file a copy of the will, you should discuss the situation with an experienced Maryland probate attorney before proceeding.
The Law Office of Henry Nash in Rockville, Maryland, helps clients with estate administration and probate of estates for decedents who resided in Montgomery County or resided out of state and owned real property here. Services include assisting families when the original of a Last Will and Testament of a deceased loved one is lost or destroyed.
Admission of a Copy of an Executed Will for Probate
The Maryland Estates and Trusts Code and Maryland Court Rules contain specific provisions relating to filing a copy of a will for probate instead of the original will. Section 5-801 of the Code provides that “An interested person may file a petition for the admission of a copy of an executed will in accordance with this subtitle.” The section also provides that notice of the petition to interested persons is not required.
Section 5-802 of the Code provides that a petition for admission of a copy of a Will may be filed with the court before administrative or judicial probate if all the following three conditions are met:
(1) The original executed will is alleged to be lost or destroyed;
(2) A duplicate reproduction of the original executed will, evidencing a copy of the original signatures of the decedent and the witnesses, is offered for admission; and
(3) All the heirs at law and legatees named in the offered will execute a consent in the manner set forth in § 5–803 of this subtitle.
Section 5-803 provides the form of consent required in item (3) above. Section 5-804 states that when a petition for admission of a copy of a will is filed, the court may authorize the petitioner to proceed with administrative probate under the Code sections applicable to intestate succession and statutory shares in Title 3 and authorize the register of wills to accept the copy for administrative probate. In the alternative, the court may require the filing of judicial probate in accordance with the applicable Code provisions in Title 4.
Rule 6-153 of the Maryland Court Rules reiterates these statutory requirements and provides the form for both the petition and consent of heirs and legatees. The Rule states:
An interested person, without notice to other interested persons, may file a petition for the admission of a copy of an executed will at any time before administrative or judicial probate if: (1) the original executed will is alleged to be lost or destroyed; (2) a duplicate reproduction of the original executed will, evidencing a copy of the original signatures of the decedent and the witnesses, is offered for admission; and (3) all the heirs at law and all legatees named in the will have executed a consent substantially in the form set forth in section (c) of this Rule.
The above provisions reflect the requirements for requesting the court to admit a copy of a will to probate in Maryland.
Validity of a Copy of a Will
A copy of a will admitted to probate is subject to all the same legal requirements as an original will. Objections to probate may be filed by an interested person if the form and execution of the will do not meet requirements established by Maryland law, or if another basis for contesting the will exists.
Issues surrounding admission of a copy of a will to probate can be complex due to family circumstances. One complicating factor is that a person wishing to petition for admission must ascertain the decedent’s heirs under the laws of intestate succession and obtain their consent to the petition. Since the heirs would inherit the estate if the decedent does not have a valid will to probate, obtaining their consent may be difficult, especially if they do not inherit under the will to the same extent they would from an intestate estate.
Seeking assistance from a knowledgeable probate attorney before filing a petition for admission of a copy of a will is strongly recommended, to ensure that a petition meets all the necessary legal requirements. Your lawyer also can address any concerns you have about the process.
Talk With an Experienced Rockville, Maryland Probate Attorney
Attorney Henry Nash has extensive experience in probate and estate administration. He can help you navigate through the complex processes involved in settling a loved one’s estate and relieve you of the stress and worry of making sure all legal requirements are satisfied.
At The Law Office of Henry Nash, we work with clients in Rockville, throughout Montgomery County, and elsewhere in Maryland. We also assist out-of-state clients who have probate matters in Maryland. If you have any questions about any of our services, we welcome you to call us at (301) 998-6111 or contact us through our online form.
