It happens more often than families expect. A loved one dies—or becomes incapacitated—and the original last will and testament cannot be found. The revocable living trust binder is missing too. Sometimes there is a photocopy in a filing cabinet. Sometimes there is only the drafting attorney's file. Sometimes there is nothing on paper at all.

Florida law does not treat a lost will and a lost trust the same way. Wills have a specific probate statute for establishing a lost or destroyed instrument. Trusts are private arrangements governed by the Florida Trust Code, and their terms can be proved through other admissible evidence—but there is no neat “lost trust” twin of the lost-will statute.

This post explains, based on the Florida Statutes and leading case principles, what can be done when a will, a trust, or both are lost—and why prevention still beats litigation.

This is general information for Florida residents, not legal advice for your specific facts. Lost-document cases are intensely evidence-driven. Speak with counsel before filing anything.

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1. Start with a search—before you assume the documents are gone

Before launching a court proceeding, do a deliberate search:

• Home safe, desk, filing cabinets, and “important papers drawers
• Safe-deposit box (and the bank's procedures for access after death)
• The drafting attorney's office file (often the best source of a correct copy)
• Prior successor counsel, financial advisors, or corporate trustees
• Digital backups, email attachments, and scanned PDFs
• Deeds, account applications, and trust certificates that name the trust and trustee
• The clerk of court, in case an original will was already deposited under Fla. Stat. § 732.901

Florida also places a duty on a will's custodian: after learning the testator has died, the custodian must deposit the will with the clerk of the court having venue of the estate within 10 days, and may be compelled to produce it. See Fla. Stat. § 732.901. Sometimes the “lost” will is sitting with someone who has not yet deposited it.

Also map title early: which assets are in the decedent's individual name, which are titled to a trustee, which pass by beneficiary designation, and which are held as tenants by the entirety. The missing binder does not rewrite how property is titled.

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2. Lost or destroyed wills: Fla. Stat. § 733.207

The statute

Florida's Probate Code specifically addresses this problem:

“Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.”

— Fla. Stat. § 733.207 (2026)

Section 733.207 does not impose a “clear and convincing” standard for proving contents; the statute simply requires the specified disinterested-witness testimony. (Clear and convincing appears elsewhere in Florida estate law—for example, certain electronic-will revocation proof under § 732.506 and oral trusts under § 736.0407—but not in § 733.207.)

Two practical paths follow from that sentence:

1. No correct copy available. Prove the wills specific content through two disinterested witnesses.

2. A correct copy is available. Prove content through one disinterested witness who can support that the copy is correct.

A “correct copy” means an identical reproduction of the will (for example, a photostatic or identical computer-generated copy)—not a marked-up draft. Florida cases treat a mere draft as insufficient to use the one-witness path; without a correct copy you need two disinterested witnesses who know the will's content. See In re Estate of Parker, 382 So. 2d 652 (Fla. 1980); Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012).

“Interested person” is a probate concept—typically someone who stands to gain or lose depending on whether the will is established (for example, a nominated personal representative or a beneficiary under the missing will). The petition for administration framework appears in Fla. Stat. § 733.202. Florida Probate Rule 5.510 sets out the procedure for establishing and admitting a lost or destroyed will (including formal notice to those who would take but for the will).

Florida's Evidence Code also helps on the paper trail: duplicates may be admissible (§ 90.953), and other evidence of contents may be used when an original is lost or destroyed without bad faith (§ 90.954)—but § 733.207's witness requirements still control how a lost will is established for probate.

Content matters—not just execution

Florida appellate decisions emphasize that witnesses must be able to speak to the will's contents, not merely that they saw the decedent sign “a will.” In Brennan v. Honsberger, 101 So. 3d 415 (Fla. 5th DCA 2012), a correct copy still was not enough without the required disinterested-witness testimony about content. Testimony that “I witnessed the signing, but I never read it” is often not enough.

You still need a validly executed will

Establishing terms under § 733.207 does not erase Florida's execution requirements. A will generally must have been executed with the formalities of Fla. Stat. § 732.502. Proof of wills is also addressed in Fla. Stat. § 733.201. Self-proving affidavits under § 732.503 help in ordinary probate; for a lost will, the court is reconstructing both existence and content.

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3. The presumption of revocation: the biggest obstacle after death

Here is the rule that surprises most families:

If an original will is known to have existed, was last in the testator's possession, and cannot be found after death, Florida law presumptively treats the will as revoked—that is, that the testator destroyed it with intent to revoke.

That presumption is long-settled in Florida case law, including In re Estate of Washington, 56 So. 2d 545 (Fla. 1952); In re Estate of Parker, 382 So. 2d 652 (Fla. 1980); and later decisions such as Balboni v. LaRocque, 991 So. 2d 993 (Fla. 4th DCA 2008), In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3d DCA 2004), and Brennan. The person offering the lost will for probate must introduce competent, substantial evidence to overcome the presumption. Circumstantial evidence can be enough—but it must be substantial, not speculative.

Important nuance: the presumption generally does not arise the same way when the drafting attorney held the original and the decedent had only a copy. See Schultz v. Estate of Roach, 549 So. 2d 1156 (Fla. 3d DCA 1989). Where the original was last seen matters.

Evidence that may help overcome the presumption includes:

• Proof the original was not in the decedent's control (for example, held by the drafting attorney or a third party)
• Evidence of accidental loss, fire, flood, theft, or concealment by someone else
• Consistent statements by the decedent that the will remained in force
• A pattern of relying on the plan (beneficiary designations, funded trust, recent conversations with counsel)
• Proof a later search was thorough and the original's disappearance is otherwise explained

Evidence that usually does not help enough on its own:

• “Mom would never have revoked without telling us”
• A beneficiary's self-serving recollection with no corroboration
• A copy alone, without the witness proof § 733.207 requires and without rebutting revocation

How revocation actually works under the statutes

Florida specifies how a will may be revoked:

• By writing — a later will, codicil, or other writing executed with will formalities that revokes or is inconsistent. See Fla. Stat. § 732.505.
• By act — burning, tearing, canceling, defacing, obliterating, or destroying with intent to revoke, done by the testator or by another in the testator's presence and at the testator's direction. See Fla. Stat. § 732.506. (Electronic wills have their own statutory revocation language and a clear-and-convincing proof standard for certain electronic acts.)

The “lost will” presumption is the law's way of dealing with an original that vanished while under the testator's control: the court assumes a destroying revocation unless the proponent proves otherwise.

If the presumption is not overcome, the estate may be administered intestate under Chapter 732 (or under an earlier will, if one is properly proved)—which can completely rewrite who inherits.

Caveats and timing

If another party may rush a different will or administration, Florida's caveat procedure (Fla. Stat. § 731.110 and the Probate Rules) can be an important protective step. Ask counsel early; deadlines and who may file differ for creditors and non-creditors.

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4. Lost trusts: different rules under the Florida Trust Code

Unlike wills, Florida does not have a single statute that says “prove a lost trust with one or two disinterested witnesses.” Do not assume the will-style revocation presumption automatically applies to a missing revocable trust without case-specific analysis.

Trusts are private; wills go to the clerk

A will is designed to be deposited and probated. A revocable living trust usually is not recorded in full with the clerk. There is no public vault that reliably stores every Florida trust instrument. That is why losing the trust binder is so painful—and why copies and drafting-attorney files matter.

“Terms of a trust” can be proved by admissible evidence

The Florida Trust Code defines “terms of a trust” to include the settlor's intent as:

• Expressed in the trust instrument; or
• Established by other evidence that would be admissible in a judicial proceeding; or
• Established by court order, certain fiduciary actions, or a nonjudicial settlement agreement.

See Fla. Stat. § 736.0103(24).

Court proceedings to determine validity and terms

Fla. Stat. § 736.0201 allows judicial proceedings concerning trusts, including proceedings to:

• Determine the validity of all or part of a trust
• Ascertain beneficiaries
• Construe trust instruments
• Obtain a declaration of rights
• Resolve other administration and distribution questions
• In defined circumstances, determine homestead status of trust-owned real property in the settlor's probate proceeding (§ 736.0201(7))

When the original instrument is missing, the typical path is a court proceeding asking the court to determine that a trust existed and what its terms were.

Evidence commonly used:

• A photocopy, PDF, or conformed copy from the drafting attorney
• Testimony of the drafting attorney and witnesses to execution
• Deeds conveying property “to John Doe, Trustee of the John Doe Revocable Trust dated …”
• Account applications, trust certificates, and tax filings reflecting the trust
• Schedules of assets, correspondence, and prior amendments
• Consistent administration (trustee acted as trustee for years)

Trust creation still requires the elements of Fla. Stat. § 736.0402 (capacity, intent, definite beneficiary or permitted purpose, trustee duties, and the sole-trustee/sole-beneficiary limit). Reformation to correct mistakes (Fla. Stat. § 736.0415) is not a shortcut around proving that a trust existed in the first place.

If the settlor is still alive and competent

This is the best-case scenario. Options often include:

• Locating any copy and confirming it is complete
• Executing a restatement or otherwise updating the trust under the Trust Code's revocation/amendment framework (see Fla. Stat. § 736.0602)
• Confirming assets are titled correctly to the current trust
• Updating the pour-over will so it matches

Do not assume a new trust automatically fixes everything if property remains titled to an old trust name/date that no longer matches. Funding and title work matter as much as the new signature page.

If the settlor is deceased

You generally cannot “just resign and restate.” The question becomes whether the trust can be proved and administered, or whether titled assets must be handled through probate, intestacy, or other remedies.

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5. Pour-over wills and a missing trust: Fla. Stat. § 732.513

Many Florida estate plans use a pour-over will plus a revocable trust. Section 732.513 is the key statute.

Among other points:

• A devise to the trustee of a trust is valid only if the trust is evidenced by a written instrument that was in existence when the will was made (or was subscribed concurrently) and is identified in the will. See § 732.513(1).
• The trust may be amendable or revocable; later amendments can be effective; and the trust may be unfunded during life. See § 732.513(2).
• If the trust is entirely revoked in writing before death, the pour-over devise fails. See § 732.513(4).

So:

• Will found / trust missing: you must still prove a qualifying trust existed and establish its terms (Chapter 736 proceedings + secondary evidence). If the trust cannot be proved, the pour-over is at risk of failure, and assets may fall to residuary gifts or intestacy.
• Both missing: you may need a § 733.207 lost-will case and a trust-proof case—while also fighting the will-revocation presumption if the original will was in the decedent's possession.

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6. When both the will and the trust are missing

Think in layers:

Layer A — Assets already titled to the trust

Real estate deeds, brokerage accounts, and business interests titled to the trustee of a named trust may still be trust property even if the instrument is missing. The fight is over terms and authority (who is trustee, who inherits, what the trust says). Court proceedings under Chapter 736, plus deeds and account records, become central.

Layer B Assets in the decedent's individual name

Those assets generally need a probate pathway:

• Establish a lost will under § 733.207 and overcome the revocation presumption; or
• Probate an earlier will if available; or
• Administer intestate if no will can be proved

Layer C — Homestead and family protections

Florida homestead rules (Fla. Const. Art. X § 4; Fla. Stat. §§ 732.401, 732.4015) can control devises and descent even when documents are missing. A lost plan does not erase homestead. Title and family configuration still matter.

Layer D Unmarried partners and blended families

If the documents cannot be proved, intestacy and homestead defaults often favor blood relatives and spouses—not unmarried partners. That is one reason missing originals are especially dangerous for non-traditional families.

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7. What success usually looks like in practice

Situation	Typical Florida path
Original will missing; correct copy + disinterested witness	Petition to establish lost will under § 733.207; rebut revocation if original was in decedent's possession
Attorney held original; decedent had copy	Presumption of revocation may not arise the same way ( Schultz ); still satisfy § 733.207
Original will missing; no copy	§ 733.207 with two disinterested witnesses who know content ; rebut revocation
Will cannot be established	Intestacy (or earlier will), subject to homestead
Settlor alive; trust missing	Restate/re-execute (§ 736.0602); fix titles; update pour-over will
Settlor deceased; trust missing but copy/evidence exists	Chapter 736 proceeding (§ 736.0201); use deeds and administration history
Pour-over will + missing trust	Prove trust existence/terms under § 732.513 + Chapter 736
Both will and trust missing	Parallel analysis: prove will, prove trust, and map each asset's title

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8. Practical checklist for families

1. Search thoroughly and document where you looked.

2. Call the drafting attorney and request the file copy immediately.

3. Inventory titles: whose name is on each deed, account, and beneficiary form?

4. Do not destroy any photocopy, draft, email, or unsigned version—secondary evidence matters.

5. Preserve witnesses: who was present at signing? Who read the documents?

6. Check the clerk for a deposited will (§ 732.901).

7. Avoid DIY “new” documents after death; you cannot recreate a decedent's will by having someone else sign.

8. Consider a caveat if another administration may be filed first (§ 731.110).

9. Get counsel early if the original will was last in the decedent's possession—the revocation presumption is real.

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9. Prevention: cheaper than a lost-document case

• Keep the original will where it can be foundor deposit it with the clerk when appropriate under Florida practice
• Keep a complete copy of the trust with the drafting attorney and with the successor trustee
• Maintain a one-page “where to find my estate plan” letter for your personal representative
• After any restatement, make sure deeds and accounts match the current trust name and date
• Review the plan after moves, hurricanes, divorces, and clean-outs that shuffle paper

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10. Bottom line

Florida gives a clear statutory path to establish a lost or destroyed will under § 733.207—but only if you can prove the will's specific content through the required disinterested witness testimony (one witness with a correct copy, or two without), and only if you can overcome the powerful case-law presumption of revocation when the original was last in the decedent's hands.

A lost trust is handled under the Florida Trust Code, especially the definition of “terms of a trust” in § 736.0103(24) and judicial proceedings under § 736.0201, using copies, drafting files, deeds, and other admissible evidence. If the settlor is still living, restatement under § 736.0602 is usually far better than litigation.

Pour-over plans add a further statutory filter under § 732.513: the trust must have been evidenced by a written instrument identified in the will. When both documents are missing, success depends on evidence—copies, witnesses, titles—and a coherent court strategy.

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How our office can help

At the Law Office of Shawn C. Newman, P.A., we help families in Broward, Palm Beach, and Miami-Dade Counties locate estate-planning documents, establish lost wills in probate, and sort out missing trust instruments—before small gaps become expensive lawsuits.

Complimentary initial consultations are available in person or by Zoom.

Law Office of Shawn C. Newman, P.A.

710 Northeast 26th Street

Wilton Manors, Florida 33305

(954) 563-9160

www.shawnnewman.com

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