Preserve the Original Copy of Your Will to Avoid Probate Issues

Your last will and testament is an incredibly important legal document needed to ensure New York probate courts carry out your final wishes and ensure your heirs receive the portion of your estate so delegated. After going through all of the careful considerations of consulting with family, speaking to an estate attorney, and drafting a will, testators need to take care in storing the original copy of the document to ensure the estate passes as swiftly as possible through probate courts and make the process easy on the executor.


Testators have numerous options to keep the original executed copy of their will safe. Often times, the last will and testament remains in the office of the probate attorney who helped craft the document. Other times, testators may choose to keep the document in a safety deposit box at a bank or another custodian of records. In any case, the executor of the estate needs to know the will’s location to pass the estate through probate.


Under New York probate laws, if the original copy of the last will and testament cannot be found, the court presumes the testator intended to destroy and revoke the document. Proving anything to the contrary can be extremely difficult and time consuming and the court may order an executor take custody of the will in keeping the chain of succession in New York state law. Furthermore, the Surrogate Court hearing the case will most likely not enter a copy of the will.


So how to Surrogate Courts treat estates where a last will and testament was created but the original cannot be located? In these situations, the court will essentially treat the estate as “intestate,” meaning the deceased passed without any will at all. Estates in intestacy will be divided in keeping with statutes under New York probate law and may leave out other beneficiaries the deceased would otherwise have left portions of the estate to had the original will been available.


As mentioned, the next living relative in the line of succession under the law would become the executor of the estate to pass the deceased’s possessions through probate, pay creditors, and distribute possessions to beneficiaries. The beneficiaries would be the deceased’s heirs, usually spouses and children, whose entitlements to the estate would vary depending on the individual situation.


While spouses, children, and in some cases grandchildren, would probably have already been left portions of an estate had the original will been located, the lack of a final will and testament could set up painful legal battles over who may be entitled to sentimental items and valuable assets. To avoid these and other issues at probate, we strongly encourage individuals planning their estates to carefully consider document custody and ensure the court carries out their final wishes.


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