When Estate Planning Documents Go Missing: Next Steps

You’ve taken a significant step by executing your estate planning documents to ensure your wishes are memorialized and your loved ones are protected during your lifetime and beyond. However, life doesn’t always follow our carefully laid plans. Whether due to a natural disaster, a recent move or simply misplacing critical records, you may find that the original documents are no longer accessible. While this can present challenges, there are several concrete steps you can take to address the situation and avoid unintended consequences.

Why Original Documents Matter

Your original estate planning documents serve as the authoritative record of your wishes. This is particularly true for wills, as California probate courts generally require the original signed will for proper administration. Under the California Probate Code, if the original will was last in the testator’s possession and cannot be found after death, the court presumes the testator destroyed it with the intent to revoke it.

This presumption can be rebutted, though the interested party must prove:

1. The will was properly executed;
2. The contents of the will;
3. The will was not revoked by the testator prior to his or her death; and
4. The will was lost or destroyed without the testator's knowledge or consent.

While a copy of the will can assist in rebutting this presumption, it is generally insufficient on its own for a court to determine that the copy is a “lost will” without additional supporting evidence.

Unlike wills, there is no specific presumption of revocation for a lost trust or other ancillary estate planning documents, such as powers of attorney and advance health care directives. In California, copies—whether digital or on paper—are regularly accepted by financial institutions, medical providers and others who require estate planning documents. This enables you to conduct business or ensure adherence to your medical wishes, even if the original cannot be located.

What to Do if Documents Are Lost

If you are unable to locate your original estate planning documents after checking all likely locations—such as a safe deposit box, home safe or filing cabinets where other important papers are stored—your first call should be to your estate planning attorney. Many attorneys securely retain original signed documents or may be able to provide digital copies of the relevant documents. Your estate planning attorney is in the best position to advise on the validity of any copies you may have been able to locate and whether you will need to re-execute any documents.

If the originals cannot be recovered, re-executing your estate plan is the best option. Signing new originals removes uncertainty and ensures your intentions remain clearly documented.

This may also be an ideal time to review your estate plan and confirm it still aligns with your goals and current situation. Your personal or financial circumstances may have changed since your original plan was created. In addition, changes in tax and estate laws may present more efficient strategies for achieving your estate planning goals.

Insurance Alert: Have You Updated Your Policies?

One often overlooked detail in estate planning involves insurance. This is especially important in today’s climate, where insurance companies are increasingly looking for technicalities to deny claims. In the past, insurers often overlooked discrepancies between property ownership and the named insured. However, there’s a growing trend among carriers to scrutinize these details more closely, largely due to the increased volume of claims.

Specifically, when property is transferred into a revocable trust, limited liability company or similar entity, it is increasingly common for insurance carriers to require that the trust or entity be listed as a named insured on the policy. Failing to update this information can lead to claim denials—even for legitimate losses—because the policyholder's name no longer aligns with the legal owner of the property.

To ensure your coverage remains intact, we recommend reviewing your insurance policies. Confirm that, in addition to your name, any trusts or entities holding title to your property are also appropriately listed as insured parties. Engaging in this proactive review with your insurance agent can help prevent unforeseen complications and provide peace of mind.

Final Thoughts & Call to Action

If you have lost your original estate planning documents, transferred title of real estate to a trust or entity, or simply haven’t reviewed your estate plan in a while, now is a great time to check in. We are here to assist you in re-executing or updating your plan, coordinating with insurance providers and ensuring your documents continue to reflect your goals and safeguard your loved ones.