What happens if I can’t find my dad’s original last will and testament?  Can I use a photocopy of his last will and testament?

There are problems in using a copy of a last will and testament.  Prior to about ten years ago, the answer was you could not submit a photocopy of one’s last will and testament.  But, tht changed in 2009.   Maryland Code Ann. Est. & Trust Sec. 5-802 allows one to submit a photocopy of the decedent’s last will and testament under certain circumstances.

What are the circumstances to submit a photocopy of the last will and testament?

The decedent heirs and legatees must provide their written consent that they accept the photocopy to be admitted to probate in lieu of the original.  It is important to note that “heirs” and “legatees” may be different people.  Heirs are individuals that would inherit if there was no last will and testament.  Legatees, on the other hand, are those individuals that are specifically named as beneficiaries in the last will and testament.

Here is an example of the problem in getting all to consent

Assume that dad’s original last will and testament could not be found.  In the photocopy of this last will and testament, he leaves everything to his two daughters who care for him in the last five years of his life.  His son, however, was left out of the last will and testament.  In this example, assuming mom has passed, the two daughters and son are the intestate “heirs” while the two daughters are the named beneficaireis – i.e. legatees. If the two daughters want to submit the photocopy of the last will and testament, they will need to obtain the signature of their brother.  But, of course in this example, thier brother may not want to sign the consent because if he does, he inherits nothing in the new last will and testamant.