How Can I Probate a Copy of a Lost Will In NYC?

Robert died survived by his wife, Patricia, and two daughters.  Robert and Patricia executed their wills with their attorney two years prior to Robert’s death.  Even though their attorney suggested that he keep their original wills in his fire-proof safe, the couple felt more comfortable bringing the originals home with them.  The attorney’s paralegal made two copies of each will to keep for their records and sent Robert and Patricia home with the original wills.

Not long after executing their wills, Robert and Patricia started to clean their house in anticipation of selling it and moving to a two-bedroom apartment in Manhattan. The couple organized their belongings and disposed of a lot of their paperwork.

When Robert died, Patricia searched her house for Robert’s will but was unable to find it.  Patricia believes that Robert accidentally lost his will.  While Patricia was very organized and kept all of her own important documents in folders in the desk in their office, Robert often forgot to file his documents after reviewing them and tended not to keep all of his papers in one place.  Although she did not know what happened to the will, she was sure that Robert had not intentionally revoked it, as he had never told her that he destroyed his will or that he intended to destroy it or write a new one.  (Destroying a will and executing a new will are two common ways to revoke a will.)  In addition, they had often talked about their wills together and even discussed their wishes with their daughters on several occasions.  If Patricia cannot find Robert’s will, can she otherwise probate Robert’s will.

Probating a photocopy of a will when the original will has been lost

Where a will is believed to be lost, it is important to search the deceased testator’s belongings and any other areas where the will might have been placed.  Where the will is not found after a thorough search, the fiduciary nominated in the will can otherwise commence a probate proceeding if he or she believes that the will was lost, rather than intentionally revoked.

Normally, in New York, a will that was in the testator’s possession (retained at his residence rather than left with the testator’s attorney for safekeeping) but is missing at the time of his death is presumed to have been intentionally revoked by the testator or by another at the testator’s direction.  Under SCPA § 1407, however, the Court may still probate Robert’s will if Patricia can (a) establish that the will was never revoked; (b) prove that the will was properly executed under EPTL § 3-2.1; and (c) show evidence of each of the provisions of the will by either presenting a true copy of the will or producing two witnesses to attest to each of the provisions of the will.

A will is properly executed in New York if the will was signed by the testator at the end of the document in the presence of two witnesses (or signed and then acknowledged by two witnesses) and the two witnesses then signed the will in the presence of the testator within 30 days of each other.  Since the will was supervised by an attorney, Patricia should present that fact as evidence that the will was properly executed.  In New York, a will is presumed to have been properly executed if the execution was supervised by an attorney.  Patricia should also present the court with a copy of Robert’s will.

Proving that a will has not been revoked is no easy task, and there is no guarantee that a will will be probated based on a purported photocopy or the word of two witnesses.  Another possible alternative is to commence an administration proceeding (a proceeding brought to appoint a fiduciary and distribute the decedent’s assets where the decedent did no have a will at the time of his death), but this may only be a plausible option if the distributive scheme set forth in the decedent’s will is the same as or similar to the intestacy succession distribution scheme set forth in Section 4-1.1 of the Estates, Powers, and Trusts Law or if all of the decedent’s next of kin (also known as distributees) consent to distribution in accordance with those laws.

With all of this in mind, it is important for a testator to leave her original will with her attorney.  The testator should make sure to ask her attorney if she keeps her clients’ wills in a fire-proof safe or vault or in another safe location.  The attorney should provide her clients with copies of their wills and should stamp any copies with a “copy” stamp.  Attorneys should also provide a note somewhere on the copies that informs the reader where the original will is located.

Please feel free to contact me if you are looking to probate a lost will.

Additional resources provided by the author

For more information, please contact probate and estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@rklawny.com
Or visit her at her new location:
80 Maiden Lane
Suite 304
New York, NY 10038

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