Preparing an estate plan and signing a Last Will and Testament, along with other papers such as a Health Care Proxy, Living Will and Power of Attorney, is important. It is also essential to maintain these documents in a safe and secure place after being signed, particularly a Last Will.
There are a number of options available with regard to safeguarding the original of a Last Will. The New York Surrogate’s Courts allow a Last Will to be filed with the Court for safekeeping. Alternatively, an individual may have his or her attorney retain the original. Of course, the original Last Will can be kept by the person themself.
When a person holds his or her own Last Will for safekeeping there are a number of things to consider. A Last Will should always be stored in a safe and secure place such as a fire-proof file cabinet or similar secure place in the home or office. A safe deposit box maintained at a bank or other facility is generally not a good location for a Last Will. This is because a Court Order may be needed to examine the safe deposit box following a person’s death. As a result, there may be a delay in obtaining the Last Will and beginning the probate process. Additionally, determining the existence of the safe deposit box and locating the box key may cause delay and expense.
Numerous issues may arise with regard to locating the original Last Will. For example, when a Will is known to have been in the possession of a decedent but cannot be located after death, New York law presumes that the person destroyed the Will with the intention to revoke it. Therefore, proof of the Will, even if there is a copy, may be very difficult. New York Surrogate’s Court Procedure Act §1407 provides strict rules regarding the proof of a lost or destroyed Will.
Regardless of the chosen location of the original Last Will, it is always a good idea to provide a copy of the Will to the named Executor or other family members along with information as to where the original is stored. Such precautions may avoid the complications associated with a search for the original Last Will after a person’s demise.
Jules Martin Haas, Esq. has been representing clients in Probate and Estate Administration proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a Last Will or other aspects of Probate or Estate Administration, please contact me at (212) 355-2575 for an initial consultation.