We at the DePalo Law Firm have handled a number of estates over the years.  When I prepare wills, I usually request that I keep the original will in my safe deposit box or I advise my client to make sure that they have their wills in a safe place; and that the executor or executrix (who is appointed to take care of the will at the time of their death and bring it to an attorney for probate) knows exactly where the original is. It is usually a good idea to give the executor a copy of the will as well.

 There was a recent case in the Bronx with Justice Nelida Malave-Gonzalez in Surrogate’s Court in the Bronx with this very scenario. In this case, a decedent had died in 2018.  The grandson was the nominated executor and he could not find the original will.  This became problematic because he wanted to probate the will as the decedent had intended. None of the decedent’s children were named the executor.  If there was no will, the children would have been granted the entire estate unless the decedent had a surviving spouse. Then the estate would have been shared between the spouse and the children. If a will fails to be probated the decedent’s wishes are not honored and the estate is distributed according to the law of the State on succession and heirship. It is very important to have an updated will.

   The grandson filed an application pursuant to the Surrogate’s Law 1407 allowing a copy of a will to be probated. He gave a total copy of the will that was dated March 17, 1998.  No one objected to the application.  Petitioner, according to the law, submitted a self-proving affidavit purportedly signed by the witnesses on the day the will was executed and an affidavit from his brother stating that he witnessed decedent give the petitioner an original copy as well as the photocopy and that the photocopy was a true and accurate copy of the original. He then stated that he lost the original after petitioner gave it to him for safekeeping.  

The court admitted the photocopy of the will into probate finding that the petitioner sufficiently established its validity and noting that the presumption of revocation did not arise because the will was not lost while in decedent’s possession.  This is a very complicated process and it is not always a given that a copy of a will is admitted into probate by the court. 

 Note that you may have to find the original witnesses to the will if the witnesses did not sign an attestation of witnesses with the will.  You must also have a reason why the will was lost with proof such as a witness as in this case; or in a case I was involved in the original was in the lawyer’s office not a safe and it burned down. You must be able to overcome the assumption the will was not revoked or discarded.  In order to overcome the presumption of revocation, one must meet all of these requirements including details with proofs of what happened to the original will. 

 The lesson to this story is make sure you keep your original will in a safe place and your executor knows exactly where it is.