Can I Probate a Copy of a Will

It started with a phone call from Emily. She’d found a copy of her mother’s will tucked away in an old box, but the original was nowhere to be found. Her mother had passed unexpectedly after a brief illness, and now, six months later, Emily was facing a probate nightmare – and potentially losing tens of thousands of dollars in inheritance due to the lack of an original, signed will. The cost of litigating the validity of a copy, even with compelling evidence, can easily exceed $20,000, and the emotional toll is immense.

As an estate planning attorney and CPA with over 35 years of experience here in Escondido, California, I’ve seen this scenario play out far too many times. The short answer is: it’s significantly more complicated than you’d hope, and often requires court intervention. While California law does allow for the probate of a copy of a will, it’s not automatic. The court will require a high degree of proof that the copy is, in fact, a true and accurate reproduction of the originally signed document.

What Happens When the Original Will is Lost?

The initial hurdle is establishing a prima facie case – meaning, on its face, the copy appears to be valid. This requires more than just Emily’s testimony. We need corroborating evidence. Ideally, this could include:

• Witness Testimony: Statements from the witnesses who were present when the will was originally signed. Their recollection of the signatures and the overall execution is critical.
• Attorney Records: If the will was drafted by an attorney, that firm might have a copy in their records, or at least evidence of the will’s existence and the signatures.
• Notarized Copy: A copy notarized at the time of execution, though rare, is extremely helpful.
• Circumstantial Evidence: Evidence of the will’s contents being consistent with the mother’s expressed intentions, or with prior estate planning documents.

However, even with substantial evidence, the court is not obligated to accept a copy. A judge must be convinced beyond a reasonable doubt that the copy accurately reflects the original intent of the deceased. This often necessitates a formal evidentiary hearing, with witness testimony and document presentation.

What if There’s a Dispute?

The situation becomes even more complex if there’s a dispute among beneficiaries. For example, if a sibling believes the copy doesn’t accurately reflect their mother’s wishes – perhaps a previous version existed that favored them more – they can object to the probate of the copy. This will trigger a full-blown probate litigation, which is expensive and time-consuming.

This is where my CPA background provides a distinct advantage. Often, disputes aren’t about whether assets are distributed, but how. Understanding the tax implications – specifically the step-up in basis for inherited assets, and potential capital gains implications – allows me to negotiate settlements that minimize overall tax liability for everyone involved. A poorly negotiated settlement can inadvertently create a significant tax burden, eroding the value of the inheritance.

The Importance of “Self-Proving” Affidavits

A “self-proving” affidavit, attached to the original will, can drastically simplify the probate process. This affidavit, signed under oath by the testator (the person making the will) and the witnesses, confirms the validity of the signatures and the proper execution of the will. If an original will with a valid self-proving affidavit is lost, the affidavit itself can often serve as sufficient proof for probate, eliminating the need for witness testimony.

What About Holographic Wills?

Holographic wills – wills written entirely in the testator’s handwriting – present a unique challenge. Because they aren’t required to be witnessed, losing the original can be particularly problematic. While the court will consider the handwriting as evidence, establishing authenticity can be difficult, especially if the handwriting is ambiguous or has changed over time.

Executor Authority and Selling Assets

If Emily, as executor, needs to sell her mother’s house to cover debts or distribute the estate, the rules regarding authority come into play. With Full Authority, an executor can sell real estate without a court hearing. With Limited Authority, the sale MUST be confirmed by the judge in an open court ‘overbid’ process, which adds significant time and expense. Proving the validity of a copy of the will becomes even more critical if the executor needs to exercise these powers.

The Probate Timeline – And Costs

A probate case cannot be closed in less than roughly 7 to 9 months due to mandatory notice periods (15 days for initial hearing + 4 months for creditors), but most California probates in 2026 take 12 to 18 months due to court congestion. Creditors have a strict window to file claims—typically 4 months after Letters are issued. If a creditor fails to file within this window (and proper notice was given), their debt is generally extinguished forever. The Probate Referee, appointed by the court, values non-cash assets (like real estate and stocks) at a statutory fee of 0.1% of the assets appraised. And California law sets a mandatory Statutory Fee Schedule based on the gross value of the estate (not the net equity). For example, the fee is 4% of the first $100k, 3% of the next $100k, and 2% of the next $800k.

As of April 1, 2025, formal probate is generally required if the gross value of the estate exceeds $208,850 (Probate Code § 13100). However, this calculation excludes assets held in trust, joint tenancy, or those with beneficiary designations (POD/TOD).

What separates an efficient California probate process from a drawn-out conflict over authority and assets?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

To protect against specific family risks, review intestate succession conflicts, check for left-out heirs issues, and be vigilant for signs of financial abuse concerns.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on California Probate Administration

• Executor Powers (The IAEA): California Probate Code § 10400 (Independent Administration)
  The Independent Administration of Estates Act (IAEA) is the engine of a modern probate. It allows personal representatives with “Full Authority” to sell real estate and pay bills without constant court approval. Without IAEA authority, every major action requires a separate court petition and order.
• Statutory Executor Fees: California Probate Code § 10800 (Compensation)
  Executor fees in California are not arbitrary. They are calculated on the gross value of the probate estate: 4% of the first $100k, 3% of the next $100k, 2% of the next $800k, and 1% of the next $9 million. This often surprises heirs when the estate has high asset value but high debt (low equity).
• Creditor Claim Deadlines: California Probate Code § 9100 (Statute of Limitations)
  The primary benefit of formal probate is the “clean break” from debts. Creditors generally have four months from the issuance of Letters to file a formal claim. If they miss this deadline, the debt is usually legally unenforceable against the estate or the heirs.
• Probate Value Threshold ($208,850): California Probate Code § 13100 (Small Estate Limit)
  Effective April 1, 2025, estates valued under $208,850 may qualify for summary procedures (like a Small Estate Affidavit) instead of formal probate. Note that this limit is adjusted for inflation every three years.
• Mandatory Publication: California Probate Code § 8120 (Notice to Creditors)
  Before the court can appoint an executor, a Notice of Petition to Administer Estate must be published in a newspaper of general circulation in the city where the decedent resided. This publication serves as constructive notice to unknown creditors and potential heirs.
• The Probate Referee: California Probate Code § 8900 (Appraisal)
  You cannot simply guess the value of the estate’s assets. The court appoints a neutral Probate Referee to appraise all non-cash assets (real estate, stocks, business interests). Their appraisal is required before the estate can be distributed or closed.