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A New York Will May Be Revoked If The Original Is Missing

Estate planning is an important part of overall financial management. The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust can provide a clear expression of a person’s desires regarding property disposition and personal affairs.

Once a Last Will and other documents are prepared and executed, it is important to safeguard them. Such papers can be maintained in a secure filing cabinet or personal safe. Sometimes these papers are held in the office of an attorney or placed into a safe-deposit box. While a safe deposit box may limit or inhibit their accessibility in situations of death or disability, the papers are secure. Nevertheless, alternative methods of storing estate planning papers may be more efficient for having them accessible when needed.

The New York Probate Lawyer Blog has published a number of articles regarding the problems created when an original Last Will cannot be found.  The New York rule is that where the original of a Will was in the possession of a testator at the time of his death but cannot be located, there is a presumption that the Will was revoked. This result is unfortunate since when a person dies his personal effects and other papers may be mishandled.   Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” provides guidelines for proving the genuineness of a Will that is lost or destroyed. As can be expected, New York City Probate lawyers are aware that probating a lost Will is difficult.

In a recent case decided by Manhattan Surrogate Nora Anderson on July 28, 2017 entitled Matter of Eisner, a lost Will was admitted to probate. In Eisner the Court found that an original of one of the codicils to the Will was provided. Also, the Court found that there was a complete copy of the Will provided along with the lack of any indication that the decedent intended to revoke the Will.

As shown by Eisner, it is important that the original of a Last Will be maintained in a secure location so that it can be easily located. The probate of a Will typically requires the filing of original papers such as the Will and a death certificate and a probate petition. When the original Last Will cannot be located, the Surrogate’s Court is very wary that any paper that it is asked to validate be a true reflection of the decedent’s intentions.

Unfortunately, after a person dies, it is not possible to ask if the missing Will was destroyed or just misplaced or mishandled. The legal presumption is that the missing document was revoked unless shown otherwise.

If you have an issue regarding probate or estate settlement call me now for a free discussion.  An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.

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