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The Importance of Safeguarding The Original of a New York Last Will

Estate planning in New York is important.  The creation of a Last Will and Testament and other documents such as a Living Trust, Health Care Proxy, Living will and a Power of Attorney, allows a person to control the disposition of assets and provide directions regarding personal decision-making.

It requires a lot of time and effort to create and finalize these papers.  Assets must be reviewed as well as beneficiary designations and property dispositions.  Alternate dispositions need to be considered in the event primary beneficiaries pre-decease a testator.  The selection of fiduciaries such as Executors and Trustees, and their possible successors, need to be considered.  Finally, all the documents that need to be signed must be reviewed and properly executed.  Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides strict rules regarding the execution of Wills.  The New York Probate Lawyer Blog has published numerous articles regarding the execution of Wills and Will Contests.

Once the above papers are signed it is also important to be certain that the original documents are maintained in a secure location.  The various ways to keep these papers include a safe at home or in a secure filing cabinet or on file with an attorney.  Sometimes the papers can be placed in a safe-deposit box although this can present problems after death since access may be restricted without a Court Order.

The problem presented is that if an original of a Last Will cannot be located, then a proceeding in Surrogate’s Court would need to be maintained to probate a lost or destroyed Will.  Surrogate’s Court Procedure Act section 1407 entitled “Proof of lost or destroyed will” provides the requirements to prove the authenticity of such a document.

The hurdle to overcome in most of these cases is that there is a presumption that a Will has been revoked if it is shown that the decedent had the Will in his possession at the time of his death and the original is missing.  A recent Dutchess estate case decided by Dutchess County Surrogate Michael G. Hayes on April 5, 2019, entitled in Estate of Gorba, is instructive.

In Gorba, the decedent’s Will could not be located.  The document that was found and that was submitted for probate was a conformed copy of a Will.  The attorney who prepared the Will provided an affirmation that the original Will was maintained by the attorney but was likely lost when the attorney moved his office.  Based upon this information the Court was satisfied that the Will was not in the decedent’s possession at the time of death and was not revoked.  Also, the attesting witnesses and the attorney were able to attest that the Will was duly executed.  However, the Court did not admit the Will to probate because there was no evidence to prove the provisions of the Will.

As can be seen from Gorba, the safeguarding of the original of a Last Will and other documents is essential to protect an estate plan.  I have represented individuals in many types of Probate cases including lost Will matters.  If you have a question or concern regarding an Estate, call me now for a free review.  We provide reasonable and flexible fee arrangements.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Bronx and Brooklyn.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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