What to Do If Your Will Was Lost or Damaged During Hurricane Season (Florida Attorney Explains)
Hurricane Helene and Hurricane Milton have caused long-lasting damage to the state of Florida, especially on the east coast. Despite the best laid plans and advance preparation, many Florida residents are still finding themselves having to pick up the pieces resulting from these catastrophes. While there seems to be plenty of information out there about dealing with Florida insurance companies, there has been little to none addressing what to do if your Will was damaged or even lost during one of these storms. This article aims to provide guidance for those who were unable to protect their Will during the chaos of hurricane season, or who learned that the so-called “water safe” bag was not as water safe as advertised.
Why You Need to Replace Your Damaged Will Now
Dealing with a lost or damaged Will would not necessarily be at the top of my priority list if I was not a lawyer, so let me first explain why this is so important. Obviously, your health and safety matter first and foremost. But once you have regained a sense of stability, this is not a task to push off, and here’s why:
Put simply, if a Will is lost, the court will act as if there is no Will. Technically speaking, the court will employ the presumption that a lost Will was an intentionally destroyed Will, meaning that the contents of that Will should be null and void. This means that the decedent’s assets (i.e., the money, property, etc. of the person who has passed) will be handled through lengthy, intestate proceedings with the probate court. The decedent’s wishes will no longer be taken into account. There are ways to overcome this presumption, but properly establishing a lost Will under Florida law is no simple feat.
A damaged Will comes with its own unique consequences. While a court will still accept a damaged Will, the damage to the Will may cause ambiguities that lead to litigation and/or certain provisions of the Will being thrown out by the court. Worst case scenario, the entire Will could be invalidated! For instance, let’s say a Will suffered water damage. The pages have long since dried, but the ink in certain areas has been affected. A beneficiary’s name could become illegible, the share of a beneficiary may be difficult to discern, or a witness’ signature may have disappeared entirely. Each of these scenarios could lead to drastic consequences that cut against what the decedent intended when executing their Will.
If you have a Will, you clearly cared enough to take the time and pay the upfront cost necessary to engage in estate planning. There are so many reasons as to why this was such a great action on your part. But that may be in jeopardy if your Will has been lost or damaged. Fortunately, this is much easier to fix while you are still alive and well.
Steps to Take if Your Will Was Lost or Damaged
1. Establish if your Will was lost or damaged
This may seem like a silly first step, but it is far from. You may have done everything right, only to learn your Will was not as safe as expected. So go check. Physically hold your Will in your own two hands. Flip through your Will. Are all the pages still there? Is each page legible? Is your signature there? What about your two witness’ signatures? If everything checks out fine, put your Will back in a protected location and make sure a trusted family member or friend knows where it is. But if you can’t find your Will or spot damage that could cause even a small amount of uncertainty (or already know that your Will is long gone or irrevocably damaged), continue on to the next step.
2. Contact an Attorney
If you can remember the name of the attorney who drafted your original Will, or even the name of the law firm they belonged to, find their office number and give them a call. You may be tempted to simply ask them if they retained a copy of your Will and can provide it to you. However, getting a copy of your original will is not enough! A Florida court will not generally accept an electronic and/or photocopy of a Will after the decedent has passed, meaning you do not want your loved ones relying on this copy.
What you need is to have a new will created. The new will can look exactly like your old will (and you can even use an old copy to help create the new will), but it will need to be executed again. Like replacing a lost or stolen credit card, a properly created new Will cancels the old one out (assuming the new will is properly drafted and executed). While this may be an additional expense, it will ensure that your wishes are preserved. If it had been a while since you had executed the original Will, or if your circumstances have changed substantially since executing the original Will, it would have been important to revisit your original Will anyway.
3. Have a formal signing conducted of the copy of your Will
Assuming you do not want any changes made to your original Will, all that is left to do is execute your new Will. If you are doing this without an attorney to save time and money, you need to make sure you execute your will correctly. You must sign in front of two witnesses. The witnesses you choose need to actually watch you sign in your presence, then sign the Will themselves, in your presence and in the presence of each other. It is best to avoid using witnesses who may become the beneficiaries of your Will (or that are related to you in any way). While not technically required, you should also have a notarized, self-proving affidavit attached to the will, as courts rely on these affidavits to show a will is valid.
If you are able, it would be wise to retain an attorney to assist you with this process. This will ensure the validity of your Will, and provide the opportunity for any updates to your Will which may be beneficial to preserving your wishes (especially if you did not previously use an attorney, or if your Will is over a decade old). You do not need to use the attorney who drafted your previous will; any experienced estate planning attorney can help.
The Silver Lining
There are not many silver linings to hurricane season, especially this year. But I encourage you to take a moment to make sure your estate planning is in order. Does your Will still accurately reflect your wishes? Are there changes that need to be made, or ways to improve your Will to avoid costly challenges later on down the line? Now is the time to make them. And if you do not have a Will, or your Will was not previously drafted by an attorney, now is the time to contact an experienced attorney to best preserve your wishes.