Marie from Rochester, NY recently reached out with a frustrating and surprisingly common situation:
“My dad, who ironically was an attorney, passed away—and we can’t find his Will. We have no reason to believe he didn’t prepare one, especially since he was a lawyer. I’m his biological daughter, and I have a sister and an adopted brother. We’ve searched every inch of the house and still can’t find the Will. What happens in Florida probate if it’s missing?”
“Quick” Answer:
This type of situation is becoming more common than you’d expect—even among attorneys. Yes, it’s strange to think a lawyer wouldn’t leave behind a Will, but it happens more often than you might think.
If you haven’t already, check out our other post with tips for locating a missing Will. But if the search turns up nothing, here’s what happens next:
What Happens If You Can’t Find the Will?
If a Will can’t be located after a thorough search, the decedent is legally presumed to have died intestate—which means “without a Will.”
In that case, Florida’s intestate succession laws apply. The decedent’s estate will be distributed based on a set formula outlined in the Florida Probate Code, rather than by personal wishes. This can be fine as long as:
- The legal heirs (children, spouse, etc.) agree with the default distribution.
- No one tries to submit a copy or memory of a “lost Will” for the court to validate.
If there’s no conflict and the heirs are in agreement, the process may proceed relatively smoothly—even without a Will.
Disadvantages of Not Having the Will
While intestate probate can be handled, there are a few important drawbacks to be aware of:
- The court may require a bond.
Without a Will naming a personal representative (executor) and waiving the bond requirement, the judge might require a probate bond. This is essentially an insurance policy ensuring the estate is properly handled—and it’s an added cost and step for the family. - Potential impact on heirs receiving government benefits.
If one of the heirs is on disability or Medicaid, receiving an unexpected lump sum from an intestate estate could disrupt those benefits. A properly structured Will (or Trust) could have prevented that issue.
Final Thoughts
📌 Bottom line: If the Will is truly lost or never existed, Florida probate law provides a default plan—but it may not reflect the decedent’s true intentions, and it can lead to complications.
If you’re in this situation, it’s best to speak with a Florida probate attorney as early as possible. We can walk you through your options and help prevent unnecessary conflict or delay.
Need help navigating probate when the Will is missing?
Call our office to schedule a consultation. We’ll help you figure out the best next step—even when the Will is nowhere to be found.
