The New York Probate Law Blog previously talked about the importance of maintaining a Last Will in a safe and secure location. After investing the time and effort to develop an estate plan and finalize a Will and other estate planning documents such as advance directives, it would be unfortunate if the Will could not be located after a person dies.
As previously pointed out, there are a number of alternatives available with regard to safeguarding a Will. The original can be left with an attorney or kept by the person himself. A Will can also be filed with the Surrogate’s Court. Keeping a Will in a safe deposit box can be problematic since a Court Order may be required to open the box after a person’s death, thus delaying estate settlement proceedings. Also, a legal presumption may arise that the Will was revoked if it is kept by the person himself or herself and the Will cannot be located after death. Attempting to probate a photocopy of a misplaced Will can be extremely difficult.
Issues that arise concerning locating a decedent’s Will are evident from a recent lawsuit filed by the sibling’s of Mama Cass, who was a member of the 1960’s group The Mamas and The Papas. As reported in the New York Law Journal on January 11, 2011, from an article appearing in The National Law Journal by Leigh Jones, Mama Cass’ died in 1974. In their lawsuit, the siblings alleged that a law firm which recently located Mama Cass’ 1967 Will in their archives, had told them at the time of her death that a Will could not be found. Since Mama Cass had apparently died without a Will, her estate was distributed pursuant to California’s law of intestacy rather than in accordance with the terms of the just found Will. As a result, the siblings claim that they were damaged by not receiving a part of the estate. “The lawsuit claims malpractice, negligent misrepresentation and fraud.”
New York Probate Attorney, Jules Martin Haas, 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.