Episode 41: Why Losing Your Original Will Could Cost Your Family Everything

Written By Jillian Mastroianni

Episode 41

Host: Jill Mastroianni

Why Losing Your Original Will Could Cost Your Family Everything

This week’s Tuesday Triage question comes from Jazmine in New Jersey. She believed she had “filed” her Will with her attorney until she discovered he’d been disbarred and her original Will was missing. In this episode, Jill unpacks what it really means to “file” your Will, how to protect it, and what happens if your original goes missing. She also shares a true Tennessee case that shows how critical proper Will storage can be and the surprising twists that followed.

What You’ll Learn in This Episode

“Filing” your Will isn’t an official legal act. Leaving your original Will with an attorney or in a law office is a storage choice, not a filing requirement. Most firms offer it as a business convenience, not a legal safeguard.

If your original Will goes missing:

  • Start by contacting the attorney who drafted it to see if they have the original or a Word version.

  • If not, you can retype the Will or convert a PDF and re-execute it with updated dates and witnesses.

  • A new Will should always revoke prior versions. Make sure a revocation clause is included in your new Will.

Where to keep your Will:

  • A fireproof, waterproof box at home works well if trusted people know how to access it.

  • A safe-deposit box can complicate access after death, sometimes requiring a court order.

  • Some counties (like Oakland County, MI) let you deposit your Will with the probate court for a small fee.

If no one can find your original Will, the law presumes you destroyed it intentionally, meaning you’re treated as having died intestate (without a Will). Overcoming that presumption requires clear and convincing evidence that the Will was lost or destroyed against your wishes.

A real-world example — In re Estate of David Leath

  • When David Leath’s Will couldn’t be found, the court ruled he died intestate.

  • His wife, Raynella, was later convicted (and later acquitted) of his murder, triggering the slayer statute, which bars killers from inheriting from their victims.

  • The case highlights why keeping your original Will secure, and retrievable, is critical.

The big picture. You can’t control every outcome, but you can control how clear and accessible your plans are.

Resources & Links

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  • Jill Mastroianni (00:00):

    This week’s Tuesday Triage question comes from Jazmine in New Jersey. She wrote in to ask where she should file her Will. She thought she’d filed it with her attorney — until she tried to get a copy and discovered that attorney had been disbarred… and her original Will was nowhere to be found. So what does it even mean to “file” your Will? And what can you do if your original Will goes missing? We’ll unpack it all today.

    Welcome to the Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni, former estate attorney, current realist, and your guide to wills, trusts, probate and the conversations no one wants to have. If your Google search history includes, “Do I need a trust?” “What exactly is probate?” and “Am I supposed to do something with mom’s Will?” you’re in the right place.

    (01:00) Before we dive in, I have a small favor to ask you.

    If you find value in these Tuesday Triage episodes, please take a moment to share the podcast with someone who might need it. 

    It takes a lot of time and heart to create and release one or two episodes every week, but I do it because these conversations matter. 

    Sharing is one of the best ways to help this community grow, and it helps me know what’s resonating with you. 

    And if there’s a topic you’d like to hear me cover, email me at jill@deathreadiness.com That’s jill@deathreadiness.com . I’d love to hear from you.

    Now, for today’s episode…

    It’s really important to have trusted professionals in your life. But sometimes it can feel like those are getting harder and harder to find.

    A couple of weeks ago, I took all three of our dogs to the vet — at the same time. Not an easy undertaking, especially when it involves bite-proof gloves and a muzzle for the tiniest but angriest of our dogs.

    (02:06) I walked in, fully prepared, only to be told by the receptionist that I didn’t have an appointment. I explained that I had scheduled the appointment over the phone. She disappeared for a few minutes, came back, and told me I was mistaken. Apparently, someone had called to cancel my previous appointment, but no one had booked the new one. I said I’d done both in the same call — still no good.

    That was the proverbial straw that broke the camel’s back with this vet’s office, after a long line of past mistakes. So I told my husband we needed a new vet. He got two recommendations from a friend and asked which I preferred. I said, “I don’t care.”

    Famous last words.

    I went to the highly recommended vet, and things were bad from the start. But my dogs needed vaccines and heartworm pills, so I decided to wait it out. And I waited… and waited. After 90 minutes, I finally asked what was going on. The vet, they said, hadn’t even arrived yet — he was running late because he’d been working at another office that morning.

    (03:18) When he finally breezed in, he glanced at each dog for maybe 30 seconds and told me he wouldn’t charge for the exams. How generous — considering he didn’t actually do the exams.

    Of course, when I got the bill, there they were: three full exam charges, $70 each. I politely asked for them to be removed. Then I came home to find out my husband had already paid a $200 deposit to book the appointment — which, of course, we never got credited back.

    So why is this relevant to Jazmine’s Tuesday Triage question? 

    Because we expect professionals to be professional, but they don’t always behave that way.

    Sometimes mistakes happen, even with the best intentions. Sometimes people are working within bad processes that they can’t control. And, occasionally, some professionals are simply negligent.

    (04:13) In Jazmine’s case, that lack of professionalism came at a really high cost. Let’s take a closer look at what happened.

    Jazmine believed she had quote “filed” her original Will with her attorney. So when her house was burglarized and all of her important documents were stolen, she didn’t panic. She assumed the attorney who drafted her Will had the original stored safely.

    But when she tried to track him down for a replacement copy, she discovered that he’d been disbarred. His law firm was gone, and with it, her original Will.

    Unfortunately, Jazmine didn’t have a digital copy either. So when the burglars took her hard copy, and her attorney’s office no longer existed, she was left without any record of what her Will said.

    Now, if you ever find yourself in a similar situation, where your original Will is missing, but you still have a copy, or the drafting attorney is still in practice, you can usually recreate a new original without too much trouble.

    (05:13) Here’s what I’d suggest:

    Start by calling the attorney who prepared your Will. Ask whether they still have your original or a Word version of the document. Tell them you can’t locate the original and want to re-execute the Will with an updated date.

    Now, what happens if your original Will turns up later? Don’t worry, every new Will you sign should revoke all prior Wills. For example, in my own Will, I include language that says I “revoke all prior Wills.” You’ll want to make sure that same statement appears in your new one. Chances are, it was already in your old Will, so you probably don’t need to change anything.

    I always recommend signing your Will at an estate planning attorney’s office. Every state has its own rules about witnesses, notarization, and other formalities, and a professional setting helps make sure it’s done right.

    If you only have a PDF or printed copy, you can retype it yourself. Some software can convert PDFs into editable Word documents, but always review carefully.  Formatting errors can sneak in. It might take a little time, but retyping and re-executing your Will, with a fresh date and proper witnesses, is often the simplest and most cost-effective way forward.

    (06:32) So what does all this mean? Should you not file your Will with your attorney? 

    Let’s back up for a second. First, what does “filing your Will” actually mean?

    Because when I first heard from Jazmine, I wasn’t entirely sure what she meant by it either. So I asked her — what do you mean by “file”?

    She told me she thought it was something official that people did with their Wills, and that’s why most people leave them with their attorney.

    But the truth is that there’s nothing official about leaving your original Will with your estate planning attorney for safekeeping.

    (07:09) In fact, most law firms suggest it for one simple reason — it’s good for business. The idea is that when you die, someone will contact the firm to obtain the original Will, and they’ll get the probate or estate administration work that follows. It’s a business tool for the lawyer, not an estate planning rule.

    And as Jazmine found out the hard way, professionals don’t always take the same care with our most important documents as we think, or hope, they will.

    So instead of thinking of “filing” your Will as some kind of official act, let’s think of it more as a process of safekeeping.

    For example, my husband’s and my original Wills are in a file box with a black, fireproof, and waterproof exterior in my home office. It’s not locked because if someone’s coming for that box, it’s an emergency, and I want them to get to it quickly. 

    So, I suppose you could say I’ve “filed” my Will right here at home, alongside our other important documents.

    (08:14) Some people prefer to keep their Wills in a locked location — and that’s fine, as long as a trusted person knows where it is and how to access it after your death.

    A lot of people also like to keep their Will in a bank’s safe-deposit box. That can work but it can also cause problems if you’re the only one allowed access.

    In many states, like in Tennessee, there’s a law that allows limited access to a safe-deposit box after the owner’s death to search for the Will. But it’s not simple because it requires a court order. 

    When I was practicing law, I had to use this statute a few times. It was time-consuming, inconvenient, and stressful for the family. 

    The same law also allows certain individuals like a decedent’s spouse, parent, adult sibling, adult descendant, or person named as executor in the decedent’s Will, to open the safe deposit box in the presence of a bank employee to search for the Will, without a court order. But, banks generally prefer to have the court order for their own protection.

    (09:19) Another option, and this one surprises a lot of people, is to deposit your Will with the probate court in your county.

    For instance, in Oakland County, Michigan, where I live, the probate court will hold your Will for safekeeping if you’re a county resident and pay a $25 deposit fee.

    Their website even says, “You should deposit your Will to prevent its loss or destruction. It’s also one of the first places relatives look once a loved one dies.”

    In my experience, though, most people don’t ever think to check the probate court for a loved one’s Will; and honestly, that wouldn’t be my first thought either.

    Even if someone files a petition to open a probate estate without a Will because they can’t find one, the court doesn’t automatically cross-check a list of deposited Wills. It’s a completely separate system.

    (10:14) A Will that’s deposited with the court during your lifetime stays strictly confidential during your lifetime.

    For example, in Oakland County, a Will on deposit isn’t revealed to anyone, not even whether it exists or not, until after your death. Only you can retrieve it while you’re alive, and anyone else must present your death certificate. You can withdraw your Will at any time, but re-depositing it will cost you another $25.

    As you might have guessed, I’m skeptical of any system someone else runs. It’s just too easy for things to get misfiled or misplaced, probably a lot easier than most of us realize.

    And after enough frustrating experiences with professionals, like the veterinarians I told you about earlier, I trust myself more than anyone else to keep my important documents safe.

    But your situation might be different. It might make perfect sense for you to store your originals with your estate planning attorney or another trusted third party. The key is choosing what works best for you and your life.

    (11:20) What happens if you die and the original Will can’t be found? 

    Under the law, if the original Will is missing, there’s a legal presumption that the decedent intentionally destroyed it. In other words, the court assumes the person decided to revoke their Will. Unless someone can prove otherwise, the estate is treated as if the person died without a Will at all, what’s called “dying intestate.”

    And when that happens, the laws of intestate succession in your state decide who inherits your probate assets.

    I just used the term probate assets, so let’s pause on that for a moment. Probate assets are the things that pass under your Will, or, if there isn’t a Will, according to your state’s intestacy laws.

    If you want to learn more about the difference between probate and non-probate assets, I’ll link in the show notes to an earlier episode: Why You Need (or Don’t Need) a Will.

    (12:20) Now, let’s look at how this legal presumption, that a missing original Will means it was intentionally destroyed, actually plays out in real life. 

    We’ll examine a Tennessee case from 2008 that’s absolutely worth hearing about.

    On March 13, 2003, a man named David Leath was found shot and killed in the bedroom of his home in Knox County, Tennessee. 

    After his death, a bitter dispute broke out between his wife, Raynella Dossett Leath, and his daughter from a previous marriage, Cynthia Wilkerson. Both women accused the other of murdering Mr. Leath.

    According to Mrs. Leath, her husband kept his original will in his sock drawer. But after his death, that will was nowhere to be found.

    Three years later in 2006, Mrs. Leath went to court. She said she couldn’t locate the original 1996 will and asked the court to accept a copy instead. Her stepdaughter, Cynthia, fought back, claiming not only that Mrs. Leath had killed her father, but that the missing original will was proof that he had revoked it.

    (13:30) So what did that 1996 will say? It named Mrs. Leath as executor and left her most of the probate estate, after giving Mr. Leath’s mother a life estate in some family land. If Mrs. Leath died first, all of Mr. Leath’s probate assets would have gone to his daughter, Cynthia.

    The difference between those two scenarios, with a will or without one, was huge. If the court accepted the copy, Mrs. Leath got everything. But if the court ruled there was no valid will, Tennessee law would split the probate estate fifty-fifty between Mrs. Leath and Cynthia.

    As I mentioned before, when the original will can’t be found, Tennessee law presumes that the person who made it, the testator, destroyed it on purpose. So, anyone like Mrs. Leath who wants to “revive” a missing or destroyed will has to overcome that presumption.

    (14:34) How does Mrs. Leath overcome the presumption that Mr. Leath destroyed his Will, intending to revoke it? 

    Well, Mrs. Leath needed to prove that the will wasn’t revoked — that it was lost or destroyed against Mr. Leath’s wishes.

    Mrs. Leath argued that Cynthia had both the motive and the opportunity to destroy Mr. Leath’s Will, but that wasn’t enough.

    The court needed clear and convincing evidence, a high legal standard, showing that the will was accidentally or fraudulently destroyed, and that Mr. Leath still intended for that original Will to stand.

    That kind of evidence can come from things like:

    • proof that Mr. Leath no longer had control of the document,

    • signs that Mr. Leath lacked the mental capacity to destroy the Will, or

    • statements showing that Mr. Leath still wanted the will to be valid.

    It’s not impossible to prove, but courts set the bar high deliberately, because the potential for fraud is significant.

    (15:41) In the end, Mrs. Leath couldn’t meet that high standard. The court ruled that Mr. Leath died intestate, meaning without a valid will, and split the probate estate in half between his wife and his daughter.

    But I didn’t choose this case just because it shows what happens when no one can find your original will...

    Do you remember earlier when I said that both Mrs. Leath and Cynthia Wilkerson accused each other of murdering Mr. Leath?

    Well, in January of 2010, the story took a turn straight out of a true-crime documentary. Mrs. Leath was convicted of first-degree murder for killing her husband, David Leath, and sentenced to life in prison.

    At the same time, she was also facing charges for the death of her first husband, a man who originally appeared to have died in a domestic cattle stampede while battling terminal cancer. When prosecutors dug deeper, they alleged that Mrs. Leath had given him a fatal overdose of morphine. Once the jury convicted Mrs. Leath of David Leath’s murder, prosecutors dropped the murder charge against her first husband since Mrs. Leath was to serve a life sentence for her second husband’s murder.

    (17:01) And with Mrs. Leath’s murder conviction, everything about Mr. Leath’s estate changed. His daughter, Cynthia Wilkerson, became entitled to inherit all of his property, including half of everything he had owned jointly with his wife.

    Why? Because of a legal rule called the Slayer Statute. You can’t profit from someone’s death if you caused it.

    If a person intentionally kills someone they would otherwise inherit from, the law steps in and treats the killer as if they died first. The killer is legally disqualified from receiving anything, inheritance, life insurance proceeds, retirement accounts, all of it, from the victim.

    In short, you can’t kill someone and then cash in on it.

    But that wasn’t the end of the story.

    (17:52) In 2016, Judge Paul Summers granted Mrs. Leath a new trial after finding that the original judge in the murder trial, Richard Baumgartner, had been impaired by painkillers. Mrs. Leath went back to court in 2017.

    Then, just as the jury was about to begin deliberations, Judge Summers granted a defense motion for acquittal.

    He ruled that the state had not met its burden — that there wasn’t enough evidence to prove Mrs. Leath killed her husband.

    So, the woman once convicted of murdering her husband, and disqualified from inheriting under the Slayer Statute, walked free.

    That’s all I’m going to share today, but if this story piqued your curiosity and you’d like to dive deeper, I’ve linked to a CBS news story as well as Mrs. Leath’s profile in the National Registry of Exonerations in the show notes.

    (18:52) You can’t control every outcome, not the stories people tell, not what gets lost, not even what a court decides. 

    But you can control how clear, organized, and accessible your plans are. 

    That’s what death readiness really means,  not perfection, but preparation. 

    And sometimes, that’s enough to keep chaos, and conflict, from taking over.

    I know how much time, emotion, and thought goes into these conversations, for both me and for you. So if something from today’s episode helped you, please share it with someone else who needs it. Your shares help this work reach more people who might not know where to start. And if you have a question or topic you’d like me to cover next, tell me. This podcast is for you, and it’s better because of you.

    (19:45) If you have a question you’d like me to answer on a future Tuesday Triage episode, submit it at deathreadiness.com/tuesdaytriage. That’s deathreadiness.com/tuesdaytriage. The link is in the show notes.

    As always, thanks for listening.

    This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.

    Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast.  While my mom is an attorney, she’s not your attorney.  The Death Readiness Podcast is for educational and entertainment purposes only.   It does not provide legal advice.  For legal guidance tailored to your unique situation, consult with a licensed attorney in your state.  To learn more about the services my mom offers, visit DeathReadiness.com.

Jillian Mastroianni
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