How do you probate a lost Will in Illinois?

In Illinois, if a Will cannot be found, the typical presumption is that the testator (Will-maker) revoked the Will by destroying it.  However, under certain facts and circumstances, a copy of a Will can be probated instead.  The following is a fictitious fact pattern based on a real Illinois case where a copy of a Will was allowed in Probate Court:

AFFIDAVIT CONCERNING LOST WILL

I, John Doe ("Affiant"), being first duly sworn, on oath depose and state as follows: 

1. The deceased, Jane Doe (“Decedent”), died at Anytown, Illinois on January 1, 2010. 

2. I reside at 123 Main Street, Anytown, Illinois.  I was appointed Guardian of the Estate and Person of the Decedent on January 1, 2005.   

3. Prior to my appointment, the County Public Guardian was Guardian of the Person and Estate of the Decedent.   

4. I verily believe that the Decedent left a Last Will and Testament Dated January 1, 1990, which has been filed with this Court along with a Petition for Probate of Lost Will and For Letters Testamentary. 

5. The original Will is believed to have been lost after the Decedent was adjudicated incompetent on January 1, 2000. 

6. In 2001 the Public Guardian’s Office filed a Petition for Leave to List Real Estate for Sale referencing the January 1, 1990 Will as the Ward’s last will.   

7. After a diligent search of all files, the original Will appears to have been lost during the transition of files that occurred upon the change of guardians.  The original Will was not in possession of the Decedent when it was lost.   

                                                                                    Respectfully submitted,

                                                                                    John Doe

Thus, as can be seen in the above Affidavit, a copy of the lost Will was allowed because the Will was lost in a transition of files from one party to another while the testator was incompetent, not because of any act of the testator.  If there is a fact pattern that clearly shows that the testator was not involved in the destruction or misplacement of the original Will, an Illinois court will consider probating a copy of the original Will for the probate estate. 

If you have questions regarding a Probate estate in the greater Chicago area, give our office a call at (630) 898-4789 to set up a free initial consultation.  You can also email us at office@kevinwilliamslaw.com if you would prefer to communicate with the attorney via email.

The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789