Probate a Copy of a Will in NYC pursuant to SCPA 1407.
When a loved one passes away in New York and their original Last Will and Testament cannot be located, families are often left wondering whether a copy of the will can be admitted to probate. The answer is: yes—under certain conditions, New York County Surrogate’s Court may admit a copy of a will to probate if specific legal standards are met.
Below, we explore the process, the applicable legal framework, and key case law shaping this area of estate litigation.
What Does It Mean to Probate a Copy of a Will?
Probating a Will means filing the Will with the Surrogate’s Court and having the Court validate it as the Decedent’s Last Will and Testament. When the original Will is unavailable, a copy—often from the drafting attorney or the decedent’s records—may be offered for probate. However, courts are cautious in these cases, especially when the original was last in the possession of the decedent.
Evidence Required
To probate a copy, you will need to gather:
- Affidavits from attesting witnesses and the supervising attorney (if available);
- A conformed or unsigned copy of the Will;
- Proof of non-revocation, such as:
- Statements from the decedent affirming the Will,
- An explanation of loss (e.g., fire, theft, misplacement during a move),
- Testimony about the decedent’s testamentary intent.
Courts are especially persuaded by consistent behavior and lack of any motive to revoke the Will.
Who Can Petition and What Is the Process?
Typically, the nominated executor named in the copy of the Will files the petition for probate. If that person is unable to serve, any interested person may petition under SCPA § 1402.
The process includes:
- Filing a Petition for Probate with a copy of the Will,
- Filing supporting affidavits pursuant to SCPA 1407,
- Serving citation under SCPA 1403 to all necessary parties,
- Attending a hearing, if the Surrogate deems it necessary.
Probate a Copy 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. So yes, it is possible to Probate a Copy of a Will.
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.
Legal Standard for Probating a Copy of a Will in New York
Under Surrogate’s Court Procedure Act (SCPA) § 1407, a copy of a will may be admitted to probate if the original will is lost or destroyed, provided the petitioner proves the following:
- The will was duly executed.
- The will was not revoked.
- The provisions of the will are clearly and distinctly proven by at least two credible witnesses or by a copy or draft of the will proven to be true and complete.
This is a high evidentiary burden and requires careful attention to the facts and circumstances surrounding the loss of the original document.
When Is This Necessary?
Probating a copy of a will typically becomes necessary when:
- The original will was lost, misplaced, or accidentally destroyed.
- The decedent kept the original and it cannot be found after death (which creates a presumption of revocation).
- A copy exists, but the nominated executor or beneficiary needs to overcome objections from distributees who would benefit from intestacy.
A Will is properly or “duly” 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. A Will that was supervised by an attorney will have a presumption of due execution.
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.
Relevant Case Law
Several decisions from New York courts, including the New York County Surrogate’s Court, illustrate how these principles are applied:
In In re Kalenak, 182 A.D.2d 1124, 583 N.Y.S.2d 332 (4th Dep’t 1992), proof of the provisions of the Will included the conformed copy of the will and the attorney draftsman’s statement that the conformed copy was identical to the original which he had prepared. Additionally, the attorney’s former secretary testified that her handwriting was on the copy of the will and that she conformed that copy to the original. Therefore, the conformed copy of the will was admitted to probate.
In In re Sayers, N.Y.L.J., Mar. 7, 2008, at 33, 2008 N.Y. Misc. LEXIS 1488 (Sur. Ct. New York County). after the execution of the Will, the attorney draftsman gave the original will to the decedent, which she kept in a bureau next to her bed. The evidence adduced revealed that at time the decedent was admitted to the hospital, the original instrument remained in her apartment. The decedent never returned home from the hospital and the original will could not be located after her death. Any presumption that the decedent had revoked the will was overcome by that evidence; the instrument was therefore admitted to probate a copy of a Will.
In In re Mados, N.Y.L.J., Nov. 3, 2004, at 23 (Sur. Ct. New York County), the decedent’s surviving spouse and sole distributee mistakenly thought that the estate planning done during the lifetime of the decedent made probating his will unnecessary. She destroyed the will after the decedent’s death only to discover there was an interest in some real property that required the probate of the will. The Court permitted a copy of the will to be admitted to probate, as the evidence proved that the will was in existence at the time of the decedent’s death and the decedent had not revoked it.
In In re Campbell, N.Y.L.J., Nov. 3, 2000, at 27 (Sur. Ct. Bronx County), an uncontested probate proceeding, shortly after the decedent’s death it was established that the decedent’s will was lost while in the possession of the attorney originally retained by the proponent. The Court held it was satisfied that the original will was not revoked and that it was lost while in the possession of the attorney originally retained to probate the instrument
What are Alternatives to Probate a Copy of a Will?
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 or in a fire prove vault to avoid having to try to Probate a Copy of a Will. 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.
Why You Need an Estate Litigation Attorney
These cases are fact-intensive and procedurally sensitive. A successful petition to admit a copy of a will often hinges on, credibility of witnesses, factual clarity, and strategic rebuttal of revocation presumption
At RK Law PC, we represent clients in complex probate matters, including contested proceedings involving lost or destroyed wills. We can help you Probate a Copy of a Will. Our team has successfully navigated New York County Surrogate’s Court and other jurisdictions across the state in high-stakes estate disputes.ill.
Additional resources provided by the author
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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