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A New York Will Needs To Be An Original For Probate

Estate Litigation in the Surrogate’s Court often involves issues that effect many decedent’s estates. These problems occur over and over again. One such problem area concerns the attempt to probate a Will where the original document cannot be located.

When a person signs a Last Will great consideration and care should be given to storing the Will in a safe location. Sometimes the Will is maintained at the office of the estate attorney who prepared the Will and supervised its execution. More often, the testator takes the Will home and keeps it with other papers. On occasion, a Will is kept in a safe deposit box at a bank. Problems arise when a person dies and the original Will cannot be located. While a copy of the Will may be available, there are strict rules regarding the probate of a copy. The New York Probate Lawyer Blog has discussed this issue in earlier posts.

There is a legal presumption in New York that where a Will is known to have been in the possession of a decedent but cannot be located when a person dies, the presumption is that the Will was destroyed by the decedent who intended to revoke it. While this presumption can be overcome by presenting facts to the contrary, it is very often difficult to satisfy the burden of proof.

Specifically, Surrogate’s Court Procedure Act (SCPA) Section 1407 entitled “Proof of lost or destroyed will” sets forth the requirements that must be met to have the lost or destroyed Will admitted to probate.

A recent case decided by Suffolk County Surrogate John M. Czygier, Jr. on July 14, 2017 entitled Will of Walsh provides an example of the problems created by a lost Will. In Walsh, the decedent’s original Will could not be located. However, the drafting attorney was able to provide a copy of the Will which was filed with the Surrogate’s Court for probate. During the proceedings, the attorney indicated that one of the decedent’s relatives had given him the Will after the decedent died. However, the attorney was not certain whether the relative gave him the original or a copy. Only a copy was in the attorney’s possession. In view of the above, the Court denied probate to the Will since it found that speculation regarding the existence of the original Will was insufficient to overcome the presumption of revocation.

It is imperative that testators make certain that their original papers such as Wills and Trusts are in a secure location and can be found by their executor or relatives after death. I have represented many individuals in cases involving the validity of a Will including issues regarding copies of such documents. Call me now to discuss your concerns regarding the probate of a Will or the administration of an estate.

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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