Should You File Your Will with the Surrogate’s Court?
To file your Will with the Court or not to file your Will with the Court? Although the question is simple, the answer is anything but. You see, you may be thinking that filing an original Last Will and Testament with the Court during your lifetime is a good way to ensure it is not lost or tampered with. Indeed, filing a Will with the Court can be an excellent way to safeguard it.
When you file your Will with the Court, you certainly do ensure that the Will is not lost and is safely maintained by the Court. However, there are some times when you may want to think twice before filing your original with the Court, especially if there is any chance that you may execute another Will during your lifetime.
Why it May Not be a Good Idea to File Your Will with the Surrogate’s Court
It may not always be advisable to file your original Will with the Court. One of the requirements during the probate process is providing notice to any person who has been adversely affected by a previous Will on file with the Court.
Indeed, Surrogate’s Court Procedure’s Act (“SCPA”) 1403(c) states that you have to give notice of a probate proceeding to any person designated in the will as beneficiary, executor, trustee or guardian, whose rights or interests are adversely affected by any other instrument offered for probate that is later in date of execution or which amends or modifies an instrument offered for probate.
Further, SCPA 1403(d) states that you have to give notice of a probate proceeding to any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate’s court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate.
This means that if you file your original Will with the Court, and then later execute a new Will, any beneficiary, executor, trustee or guardian that is listed in any prior Will who receives less under the old Will then under the new Will still need to be a part of the probate proceeding. This means that even people you no longer wanted to give your money to, must be a part of the probate process.
Why is this so terrible? First, although not ideal, you may not want someone knowing that you have taken them out of the Will. Picture brother Ed’s face when he sees a copy of your Wills and sees that in one he was in and in the nxt he was taken out. Will he want to cooperate? Will he want to cause a problem? Does he have anything to lose by trying to cause an issue and get the second Will thrown out? Will he want to have the newer Will thrown out?
(If you are thinking that there is a sentence in the new Will whereby you revoke your old Will is going to help you, then you must know that this sentence only becomes effective once the Will is probated. Before the Will is admitted to probate, the sentence about revocation has no force or effect. If you really don’t want that old Will surfacing, then be sure to revoke it, and certainly don’t file it with the Court.)
In addition, and sometimes significantly more onerous, you will need to track down the adversely affected people and get them to sign Waivers and Consents.
For example, you and Sally are dating. You leave money to her in your Will. Then you break up, Sally moves away, you lose track of Sally, you make a new Will that leaves everything to your child, and then you die.
If you filed your Will with the Court leaving assets to Sally, then your executor now must find Sally. Sally may be hard to find. What if she moved? What if your executor or current beneficiaries cannot locate her? Then your Executor will have to conduct a due diligence search to try to locate her.
If Sally cannot be located, you will need to explain to the Court what you did to try to locate them and you may need to request that you be permitted to publish the Citation in the newspaper so you can get jurisdiction over Sally and any other adversely affected people. This is expensive and time consuming.
In addition, if the adversely affected person cannot be found, then the Court may appoint a Guardian Ad Litem to represent their interests. Imagine having to wait for the report of a Guardian ad Litem to represent Sally’s interests in order for the Will to be admitted to Probate.
What’s worse, even if you find Sally, she will be a necessary party and will either need to sign a Waiver agreeing to the second Will being probated or be issued a Citation to appear on a given Court date during which she will be allowed to raise objections to the second Will.
Did things end amicably or was she bitter? You have now handed Sally a forum to try to eliminate the second Will so that she can still inherit or, worse even, just hold up the probate process.
Sally has the right to try to show that you did not have capacity when you signed your Will. She may try to assert that one of the new beneficiaries unduly influenced you to leave money to them and to take her out. While Sally may not be successful, this will incur additional legal fees and expenses and cause a delay in the probate process, all which may have been avoided had the first Will not been filed with the Court.
What’s the moral of the story? First, you should properly revoke your old Wills and you should think carefully about where to store them if you don’t revoke them.
Where Can I Store and Safeguard my Original Will
So where’s a good place to keep your original Will? Some people think that a safe deposit box in the bank is a good idea. While it does remain secure, this is a pyrrhic victory because once you pass away, the bank will not allow anyone else entry into the safe deposit box without a Court Order. So, in order for your Executor to get the Will in order to probate it with the Court, they will first have to request an Order from the Court allowing the safe deposit box to be opened. This also takes time and incurs additional expenses.
A better alternative would be to find a secure place in your home to keep the Will. A fireproof lock box or cabinet. You may want to let the executor know where it is in case of emergency. Alternatively, some clients choose to have their attorney maintain the original Will in their office.
What Alternatives are Available If I Do Not Want to Deal with Will Storage Issues?
If you do not want to deal with the issue of safeguarding Wills and you have realized you should not file your Will with the Court, then instead of doing a Will, you can do a Trust. Trusts are private documents, do not require probate, do not require court oversight, and certainly do not require that you locate the people in prior versions of Trusts that can be revoked.
We can help you figure out whether you should file your Will with the Surrogate’s Court as well as the estate planning documents that work best for you. Contact us to learn more.
For more information, please contact Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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40 Wall Street
New York, NY 10005
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