Under Utah law, when a will that was last known to be in the testator’s possession cannot be found after death, a rebuttable presumption arises that the testator revoked the will by destruction. If the will was last known to be in someone else’s possession, the presumption is that the will was not revoked. Utah Code Section 75-2-506 governs the proof and presumption standards for lost, destroyed, or altered wills.
Last updated: July 2026
Key Takeaways
- If a will was last in the testator’s possession and cannot be found, the law presumes it was revoked under Section 75-2-506.
- If a will was last in someone else’s possession and cannot be found, the law presumes it was not revoked.
- A lost will can be probated in Utah if its contents are proven by clear and convincing evidence.
- Physical alterations to a will may be treated as partial revocations if the testator made them with intent to revoke.
- The original will is preferred, but a copy may be admitted to probate if the original is lost and its contents are proven.
The loss or destruction of a will creates significant challenges in Utah probate. If the original will cannot be produced, the probate court must determine whether the testator revoked the will intentionally or whether it was accidentally lost, destroyed by someone else, or damaged without the testator’s intent. The outcome determines whether the estate passes under the lost will’s terms or under Utah’s intestate succession laws.
Utah’s evidentiary rules on lost wills reflect the tension between honoring the testator’s intent and preventing fraud. Allowing a lost will to be probated based on testimony alone opens the door to false claims. Requiring the original will to be produced penalizes the estate for circumstances beyond the testator’s control. Utah strikes a balance by creating presumptions based on who last possessed the will and requiring clear and convincing evidence of the will’s contents.
What presumption applies when a will is lost in Utah?
Under Utah Code Section 75-2-506, the presumption depends on who last possessed the will. If the will was last in the testator’s possession and cannot be found after a diligent search, the law presumes that the testator destroyed the will with the intent to revoke it. This presumption can be rebutted by evidence that the testator did not intend to revoke the will or that the will was lost or destroyed without the testator’s knowledge or consent.
If the will was last in the possession of someone other than the testator, such as the testator’s attorney or a family member, the law presumes that the will was not revoked. The burden shifts to the person claiming revocation to prove that the testator intentionally destroyed the will. This distinction reflects the common sense inference that people do not usually destroy their own wills unintentionally, but third parties may lose or destroy documents without the testator’s knowledge.
How is a lost will proven in Utah probate court?
To probate a lost will in Utah, the proponent must prove the will’s contents by clear and convincing evidence. This is a higher standard than the preponderance of the evidence standard that applies to most civil matters. A photocopy of the will is the best evidence and is typically accepted if the proponent can explain why the original cannot be produced.
If no copy exists, the proponent may present testimony from witnesses who read the will or who can testify to its material terms. Witnesses who signed the will are particularly valuable because they can attest to both the will’s execution and its contents. The court may also consider drafts, notes, correspondence, or other documents that reference the will’s terms. The more evidence available, the more likely the court is to admit the lost will to probate.
What happens if a will is accidentally destroyed in Utah?
If a will is accidentally destroyed, such as in a fire, flood, or natural disaster, the presumption of revocation does not apply because the destruction was not intentional. The proponent must prove that the original will existed, that it was properly executed, and that it was accidentally destroyed without the testator’s intent. A copy of the will, if available, can be admitted to probate.
The proponent should gather evidence of the accidental destruction, such as fire department reports, insurance claims, photographs of the damage, or testimony from witnesses who saw the original will before it was destroyed. The court will consider all available evidence in determining whether to admit the copy of the will to probate. The more evidence of the accidental destruction, the more likely the court is to accept the copy.
Under Utah Code Section 75-2-506, if a will was last in the testator’s possession and cannot be found, a rebuttable presumption of revocation by destruction arises.
What happens if a will is physically altered or defaced in Utah?
Physical alterations to a will, such as crossing out provisions, writing changes in the margins, or tearing the document, may constitute partial or complete revocation under Utah law. The court must determine whether the alterations were made by the testator with the intent to revoke. If the alterations are in the testator’s handwriting, there is a presumption that the testator made them, but the intent to revoke must still be proven.
Alterations not made in the testator’s handwriting or not made with the intent to revoke do not revoke the will. The court will disregard unauthorized alterations and probate the will in its original form. The key question is always the testator’s intent, which the court determines from the nature of the alterations, the testator’s handwriting, and any extrinsic evidence of the testator’s intentions.
How can I prevent my will from being lost in Utah?
The best way to prevent your will from being lost is to store the original in a safe but accessible location and tell your executor where it is located. Many Utah residents keep their wills in a fireproof home safe or with their attorney. A safe deposit box is an option but can create delays if the bank requires a court order to open the box after the testator’s death.
You should also keep a file with the original will, a signed copy, and a separate note telling your executor where the original is stored. Giving a signed copy to your executor or attorney provides a backup in case the original is lost. The copy can be used to probate the estate if the original cannot be found, as long as the presumption of revocation can be overcome.
| Situation | Presumption | Burden of Proof |
|---|---|---|
| Will in testator’s possession, not found | Presumed revoked | Proponent must rebut |
| Will in third party’s possession, not found | Presumed not revoked | Contestant must prove revocation |
| Will accidentally destroyed | No presumption | Proponent must prove contents |
| Will physically altered by testator | Intent to revoke presumed | Proponent must rebut for altered portions |
Frequently Asked Questions
Can a photocopy of a will be probated in Utah?
Yes, a photocopy can be probated if the proponent proves the original was not revoked and proves the copy is a true and accurate copy of the original. The court requires clear and convincing evidence.
What happens if a will is found after a copy has been probated in Utah?
If the original will is found after a copy has been probated, the court may reopen the probate proceeding to admit the original. Any distributions already made under the copy may be affected.
Does a lost will have to be offered for probate within a certain time in Utah?
Utah law imposes time limits for offering a will for probate. A lost will must be offered within the same statutory time frame as any other will, which is typically three years from the date of death.
Can a lost will be contested in Utah?
Yes. A lost will can be contested on the same grounds as any will, and the contestant may also challenge whether the will was properly proven as a lost will under Section 75-2-506.
Who has the burden of proving a lost will in Utah?
The person seeking to probate the lost will has the burden of proving that the will was validly executed, that its contents are accurately established, and that it was not revoked.
What evidence is needed to overcome the presumption of revocation in Utah?
The proponent must present clear and convincing evidence that the testator did not intend to revoke the will. This may include testimony about the testator’s statements, the circumstances of the will’s disappearance, and the testator’s consistent reliance on the will’s terms.
Can a will be revoked by tearing or destroying it in Utah?
Yes. Under Utah law, a testator can revoke a will by intentionally burning, tearing, canceling, obliterating, or destroying the will with the intent to revoke it.
What is the difference between revocation by destruction and revocation by subsequent document?
Revocation by destruction requires the physical act of destroying the will with intent to revoke. Revocation by subsequent document requires a later validly executed will or codicil that expressly revokes the earlier will or contains inconsistent provisions.
How should I protect my will from being lost or destroyed in Utah?
The best protection is to store your original will in a secure location, inform your executor of its location, and keep a signed copy in a separate location. Your Utah estate planning attorney can store the original in their vault and provide you with copies. You should also review your storage arrangements whenever you update your will to ensure the new original is properly safeguarded and the old original is destroyed to avoid confusion.
If your original will is lost or destroyed and you are still alive and have capacity, the simplest solution is to execute a new will. This eliminates the evidentiary issues and ensures your estate plan is clear and enforceable. A new will expressly revokes all prior wills, providing certainty for your family and your executor.
Planning your estate in Utah? Jeremy D. Eveland, MBA, JD, can help you create a comprehensive estate plan that protects your legacy and your loved ones.
Call (801) 613-1472 or visit jeremyeveland.com to schedule a consultation today.
This article is for informational purposes only and does not constitute legal advice. Consult with a qualified Utah estate planning attorney for advice specific to your situation.
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