When someone dies, their family may know they have a will – and they may even have a copy or two sitting around. However, locating the original can be problematic. What happens if it can’t be found?
In New York, someone’s original will is generally required for probate. However, that doesn’t necessarily mean the deceased person’s wishes can’t be honored if it is missing.
Is a copy of the original will sufficient?
New York law treats a missing original will seriously. If the deceased last had possession of the original and it can’t be located after their death, the court generally presumes they intentionally destroyed it to revoke it. That creates a problem for anyone trying to enforce the will with a copy.
Under Section 1407 of the Surrogate’s Court Procedure Act, the person seeking to probate the copy of the original will must establish the following:
- The will wasn’t revoked: This could be established through witness testimony, mentions of the will in text messages, emails or letters and other circumstantial evidence showing that the will was likely accidentally destroyed or lost.
- The will was legally executed: The court must be satisfied that the original was signed and properly witnessed according to state law. This can generally be established fairly easily if the original was created with the assistance of an attorney.
- The contents can be proven: This may be done with a copy of the will that the court establishes as complete and true or the testimony of two or more witnesses that the court finds credible.
If the court won’t admit the missing will, the estate may be distributed according to an earlier valid will. If none exists, New York’s intestacy laws will come into play. That could mean the deceased’s assets go to people they never intended.
What should families do when a will is missing?
Before assuming the original is permanently lost, families should carefully search the deceased person’s belongings, safe deposit boxes and important papers. They should also contact the attorney who prepared the will (if known) to determine whether the original was retained in their office for safekeeping or potentially filed with the court.
If the original still can’t be found, an estate planning or probate attorney can help investigate what happened to it, determine whether a lost-will proceeding is appropriate and gather supporting evidence. The sooner families address a missing will, the better their chances are of resolving the issues without unnecessary delays.