A will is considered lost under Pennsylvania law when the original signed document cannot be produced for probate, even though credible evidence shows the testator executed it and did not revoke it. Pa. courts will admit a copy or reconstructed version if the proponent meets the three-part Burns v. Kabboul test and rebuts the presumption that a testator who held the original destroyed it. Without that proof, the estate passes by intestacy.
This guide explains how the Register of Wills and the Orphans' Court handle missing-original cases, the evidence that moves the needle, and the practical steps for an heir or named executor who opens a drawer and finds only a photocopy.
What counts as a lost will under Pennsylvania law
Pennsylvania treats three fact patterns very differently. The first is a will that existed and was properly executed, but the signed original cannot be found. The second is a duplicate original or photocopy of a will where the ink-signed version is missing. The third is a claim that a will was drafted but never actually signed.
The first two scenarios are "lost will" cases. Pa. courts can admit a copy, a duplicate original, or reconstructed contents if the proponent carries a heavy burden of proof. The third scenario is not a probate case at all. A document the decedent never signed cannot be admitted, no matter how clearly it reflects stated wishes. Read the companion guide on how one makes a valid will before assuming an unsigned draft has legal force.
The presumption that the testator destroyed the will
When the original was last known to be in the testator's possession and is missing at death, Pennsylvania law presumes the testator destroyed it with intent to revoke a will. The presumption traces to In re Estate of Murray, 404 Pa. 120, 171 A.2d 171 (1961), and has been reaffirmed many times, including in In re Estate of McCaffrey, 453 Pa. 416, 309 A.2d 539 (1973).
The presumption is not absolute. It is a starting point the proponent must overcome with what Murray called "positive, clear and satisfactory" evidence. Circumstantial proof can satisfy that burden. As the Supreme Court observed long ago in Gardner v. Gardner, 177 Pa. 218, 35 A. 558 (1896), presumptions yield to proof of actual facts.
The presumption only attaches when the original was in the testator's hands. If the drafting attorney kept the signed will in a firm vault and it was lost in a flood or office closure, the presumption does not arise. The proponent still must prove execution and contents, but there is no uphill battle on revocation.
The Burns v. Kabboul three-part test to probate a copy
The Superior Court in Burns v. Kabboul, 407 Pa. Super. 289, 595 A.2d 1153 (Pa. Super. 1991), framed what a proponent of a copy must show. Stated in plain English, the proponent must prove three things: that the testator properly executed the original; that the contents of the missing original match the copy offered; and that the testator did not revoke the will before death.
Each prong is independent. Failing any one of them means the copy is not admitted and the estate proceeds as though no will existed. The third prong is where most contested lost-will cases are won or lost, because it runs directly into the Murray presumption.
Execution
Pennsylvania requires two competent witnesses to prove any will under 20 Pa.C.S. § 3132. The statute prefers testimony from subscribing witnesses when they are available. A self-proving affidavit under 20 Pa.C.S. § 3132.1 can stand in for live witness testimony, but only when the will is uncontested and not signed by mark. Crucially, a self-proving affidavit attached to a copy does not cure the missing original. Execution of the original still has to be proved, usually through the drafting attorney, the witnesses, or the notary.
Contents
The proponent needs a reliable picture of what the lost will actually said. A conformed copy from the drafting attorney's file, a Word document pulled from the drafter's computer system, or testimony from someone who read the original and can identify the copy all qualify. Fragmentary memories of the testator's wishes are not enough.
Non-revocation
This is the heart of most disputes. The proponent must rebut the Murray presumption with specific facts, not speculation. The stronger the evidence that the testator kept repeating the same plan, the more likely the Orphans' Court will find the will was simply misplaced.
The evidence that overcomes the presumption
Pa. courts have accepted several categories of proof as "positive, clear and satisfactory." Drafting-attorney testimony confirming the original went home with the testator and was never brought back for revocation is powerful. Computer drafts, retainer letters, and prior revisions showing a consistent plan help. Statements to family and friends in the months before death that describe the will's terms support non-revocation.
External destruction is often decisive. Fires, floods, and burglaries that wiped out a testator's papers break the causal link between absence and intent. So does evidence of a disinherited relative with both access and motive to remove the original. Heirs waiting out a contested lost-will hearing can request a 48 Hour Probate review to see whether an advance fits the estate file while the Orphans' Court schedule plays out.
Disorganization alone can be enough. In Estate of Maddi, the Superior Court credited a "convoluted filing system" as part of the reason the ink-signed original could not be located, even though a duplicate signed original existed.
What the Orphans' Court has found insufficient
Not every sympathetic fact pattern clears the bar. In In re Estate of Janosky, 827 A.2d 512 (Pa. Super. 2003), the proponent leaned on the testator's closeness with the beneficiary named in the missing will. The Superior Court held that mere family-relationship evidence did not rebut the presumption.
Nor do bare declarations of intent. In In re Estate of Keiser, 560 A.2d 148 (Pa. Super. 1989), the court rejected proof that consisted only of the testator's statements about what the will said and how the family lived. Declarations of intent, standing alone, do not show the testator kept the instrument intact to the end.
The takeaway is that lost-will cases turn on corroboration. One affidavit from a favored beneficiary rarely moves the court. A drafting attorney, a paralegal, a non-beneficiary witness, and contemporaneous documents moving in the same direction usually does.
Estate of Maddi: a recent Pennsylvania lost-will case
The leading modern example is In re Estate of Maddi, 167 A.3d 818, 2017 PA Super 246 (Pa. Super. 2017), app. den. 178 A.3d 107 (2018). The decedent executed duplicate originals, signed both, and kept one at home. After death, a thorough search of the house could not produce the home-kept original. The other duplicate signed original was offered for probate.
The Superior Court affirmed admission. It credited the drafting attorney's testimony, the absence of any contact with a new attorney that would suggest a revision, large inter vivos transfers that tracked the testator's stated plan, and the decedent's notoriously convoluted filing system. As the court summarized, the record supplied the "positive, clear, and satisfactory" evidence Murray requires to overcome the presumption of revocation.
Maddi matters because it shows that a duplicate signed original is a copy for presumption purposes when the home-kept original is missing, and that ordinary human disorganization can be part of the proof.
Procedure before the Register of Wills and the Orphans' Court
A lost-will proceeding begins with a petition to the Register of Wills in the county where the decedent was domiciled at death. The petition typically attaches the best available copy, an affidavit from the drafting attorney if possible, affidavits from the subscribing witnesses, and a narrative explaining why the original is missing and why the presumption of revocation should not apply.
If the Register has any doubt, or if an interested party caveats the petition, the matter moves to a hearing. The Register can take testimony, but contested lost-will cases are often certified to the Orphans' Court Division of the Court of Common Pleas. Appeals from the Register run to the Orphans' Court, and further review goes to the Superior Court. The appellate standard of review for such decrees was restated in Estate of Nalaschi, 90 A.3d 8 (Pa. Super. 2014).
The named executor usually files the petition, but any person who would benefit under the lost will has standing. Heirs who would take by intestacy are entitled to notice and can contest a will that is offered from a copy.
If the petition fails: Pennsylvania intestate succession
If the Orphans' Court refuses to admit the copy, the estate is administered as if no will existed. Letters of administration issue to the decedent's statutory next of kin, and property passes under the Pa. intestate shares. A surviving spouse, children, parents, and more remote relatives take in the order set by statute.
Losing a lost-will petition can dramatically change who inherits. A friend, charity, or non-marital partner named in the copy receives nothing under intestacy. That is why the evidentiary workup matters so much before anyone files.
Practical steps if you can't find the original will
Before assuming the will is truly lost, work through a methodical search. Many Pa. "lost" wills are found after a second sweep.
- Check the safe, desk, and bedroom of the decedent, then every filing cabinet and storage bin.
- Call the drafting attorney and ask whether the firm holds the original or a conformed copy in its will vault.
- Ask the Register of Wills whether the county operates a will-safekeeping program and whether the decedent deposited a will there.
- Check safe deposit boxes at the decedent's banks; Pa. banks can permit an inventory under limited circumstances.
- Contact prior attorneys, financial advisors, and the named executor, who often received a conformed copy.
- Preserve any computer, email account, or cloud storage that may contain the drafter's Word file or a scan.
- Secure the home against anyone who might benefit from destroying the will.
If the original still cannot be located, collect the best copy available along with proof of testamentary capacity and execution, and speak with counsel before filing. A weak petition that is denied can prejudice a later, stronger one.
Preventing a lost-will fight
Most lost-will litigation is avoidable. Pa. attorneys frequently offer safekeeping of the signed original in a fireproof vault, and some counties run a Register of Wills safekeeping program for a nominal fee. Leaving the original with the drafting firm, and giving the family a conformed copy plus the firm's contact information, sidesteps the Murray presumption almost entirely.
When to talk to a Pennsylvania probate attorney
Call counsel early when the original will cannot be found. A lawyer can interview the drafting attorney, preserve computer files, draft the lost-will petition, and line up witnesses before memories fade. Counsel also helps where a marriage, divorce, or birth after execution may have modified the will's effect under 20 Pa.C.S. § 2507, and can advise on the interplay of divorce and Pennsylvania wills.
Estates that are modest may qualify as a small estate and avoid full administration, but lost-will disputes generally require a formal proceeding. If the case becomes a contest, the court may require an expert witness on handwriting, capacity, or undue influence.
Frequently asked questions about lost wills in Pennsylvania
Can you probate a copy of a will in Pennsylvania?
Yes, but only if the proponent satisfies the Burns v. Kabboul three-part test. The petitioner must prove the original was properly executed, that the copy accurately reflects its contents, and that the testator did not revoke it before death. When the original was last with the testator, the Murray presumption of revocation applies and must be overcome with positive, clear, and satisfactory evidence such as drafting-attorney testimony, consistent statements of intent, disaster, or evidence of a bad actor with access and motive.
What happens if no will is found in Pennsylvania?
If the Register of Wills and the Orphans' Court will not admit a copy, the estate is administered under intestate succession. Letters of administration issue to the statutory next of kin, and assets pass to the surviving spouse, descendants, parents, or more remote relatives in the order set by Pa. law. Beneficiaries who would have taken under the missing will, including friends and charities, receive nothing through the probate estate unless they also qualify under a non-probate designation such as a beneficiary account or trust.
Who files the petition for a lost will in Pennsylvania?
The named executor typically files, but any person with a beneficial interest under the lost will has standing. The petition goes to the Register of Wills in the county of the decedent's domicile at death. If the Register is satisfied, probate is granted on the copy. If there is any dispute, the matter is certified to the Orphans' Court Division of the Court of Common Pleas for hearing. Heirs entitled to notice can caveat the petition and force a contested hearing before a decree is entered.
How long do you have to probate a will in Pennsylvania?
There is no short statute of limitations to probate a will in Pa., but practical deadlines apply. Creditors, tax filings, and title transfers press against the estate almost immediately. A lost-will petition should be filed as soon as a diligent search is complete, because delay weakens witness memories and raises suspicion about non-revocation. See the guide on deadlines and timelines for the other clocks that start ticking at death, including the inheritance tax return due nine months after the date of death.
Does a self-proving affidavit help if the original is lost?
It helps with execution but does not rescue a missing original. Under 20 Pa.C.S. § 3132.1, a self-proving affidavit lets the Register accept the witnesses' sworn statements as proof of due execution without live testimony. If the original is lost and only a copy exists, the affidavit still attests to how the original was signed, which addresses the first Burns prong. The proponent must separately prove contents and non-revocation. A self-proving affidavit on a copy is also unavailable where the will is contested or signed by mark.
Can a photocopy of a signed will be admitted in Pennsylvania?
Yes. A clean photocopy of a validly executed Pa. will can be admitted if the three-part Burns test is met. Courts prefer copies that come from a reliable source, such as the drafting attorney's conformed file, rather than copies produced by a beneficiary. The stronger the chain of custody and the corroboration from witnesses and computer records, the more likely the Orphans' Court will admit the copy over a challenge based on the Murray presumption.
What if my loved one's will was destroyed in a fire?
External destruction is a well-recognized way to rebut the presumption of revocation. If the testator's home, safe, or attorney's office was destroyed by fire, flood, or similar event, the proponent shows that the disappearance had nothing to do with intent to revoke. The petition should include documentation of the event, such as an insurance claim or fire marshal report, along with the best available copy of the will and execution proofs under 20 Pa.C.S. § 3132.
Who can contest a lost-will petition in Pennsylvania?
Any person whose inheritance would change if the copy is admitted has standing to contest. That includes heirs who would take a larger share under intestacy, beneficiaries of a prior will, and those named in a later alleged will. Contestants can challenge each Burns prong and can argue the Murray presumption was not overcome. Witnesses may include the drafting attorney, family members, and sometimes handwriting or capacity experts. The person selected to serve as executor is usually the one who defends the petition.
Bottom line
Losing the original of a Pa. will is not the end of the estate plan, but it raises the burden of proof considerably. The drafting attorney's file, computer drafts, witnesses, and the testator's own consistent statements are the ingredients that rebut the Murray presumption and carry a petition under Burns v. Kabboul. For more articles in our Pennsylvania probate guide, or to see how 48 Hour Probate works for heirs waiting on a contested estate, start with the sibling guide on how to open an estate.