New York Probate of A Lost Will -A Common Problem

Upon the death of a person, an initial determination needs to be made as to whether there exists a Last Will and Testament.  The presence of a Will has great significance. This estate planning document typically contains written provisions concerning the manner in which a person’s probate estate is to be distributed.  A Will may have directions providing for specific gifts to named persons or institutions or there may be dispositions to a group of beneficiaries based upon percentages or shares.      In addition, there is usually a provision designating the executors, and sometimes trustees if a Will establishes a testamentary trust.

In the event a Will does not exist, the disposition of a New York estate is made to a decedent’s next of kin according to the priority established in Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  The New York Probate Lawyer Blog has published many articles regarding estate settlement.

Where a person creates a Will, it is essential that the original paper be obtained to be filed with the Surrogate’s Court.  The probate process requires that the original Will bearing the original signature of the testator and the attesting witnesses be produced.  A common problem which occurs is that a copy of a decedent’s Will is found but not the original.  Nowadays, very often after a Will is executed the original is kept by the testator. Where a Will is signed many years before death, locating the original among a decedent’s personal affects may be troublesome, especially if a decedent had moved residences over time and had not provided a secure location for the document.

In New York, where an original Will cannot be located and the Will is known to have been in the decedent’s possession, a rebuttable presumption exists that the Will was revoked by the testator.  It is very difficult to overcome this presumption.  Surrogate’s Court Procedure Act section 1407 entitled “Proof of lost or destroyed will” provides the requirements for the admission to probate of a Lost Will. After a testator is deceased, it is difficult to ascertain a testator’s intentions in order to overcome the presumption of revocation.

There are many scenarios where an original Will may not be located.  Sometimes, the factual situation allows the Lost Will to be granted probate.  Such a situation was the subject of a Manhattan estate case entitled “Will of William M. Peevers” decided by Manhattan Surrogate Hilary Gingold on August 12, 2025.  In Peevers the decedent’s Will had been retained by the attorney in an office safe but was inadvertently destroyed when the attorney moved offices.  Since the Will was never in the decedent’s possession, the presumption regarding revocation did not apply.  Since the requirements of SCPA 1407 were otherwise satisfied, the Will was admitted to probate.

As can be seen from Peevers, probating a Will, as with most estate cases, can be complicated.  Guidance from an experienced estate lawyer may be essential.  I have been representing clients in New York estate and Guardianship matters for over 40 years.  Do you have a question regarding an estate or Guardianship matter?  Call me now for a free confidential review.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 or an initial free consultation.