Probating a Lost Will in NYC: When Surrogate’s Court Can Admit a Copy
You expect probate to start with the original Will. But sometimes the original disappears. A family member finds only a photocopy or scan—or nothing at all.
If you probate an estate in New York City (Manhattan, Brooklyn, Queens, the Bronx, or Staten Island), you may still be able to move forward. New York law lets Surrogate’s Court admit a lost or destroyed will in certain cases. The court will not “take your word for it,” though. You must prove the Will’s validity with evidence.
This post explains what you must prove, what evidence helps, what lost-will cases often look like in NYC Surrogate’s Court—and what you can do to handle urgent estate issues while the lost-will proceeding is pending.
What Is a “Lost Will”?
A will becomes “lost” when no one can find the original signed document after the person dies.
A will may also count as “destroyed” when the original exists only as torn, burned, water-damaged, or otherwise unreadable pages.
Either way, you must convince the court to accept something other than the original—usually a copy.
The Rule That Controls How to Probate a Lost Will in New York: SCPA § 1407
To probate a lost or destroyed will in New York, you generally must prove three things:
- The decedent did not revoke the will
- The decedent properly executed the will (the same signing and witness requirements as any will)
- You can prove the will’s contents clearly and specifically, usually by:
- showing the court a true and complete copy, or
- presenting two credible witnesses who can describe the will’s provisions
If you miss one of these requirements, the court can deny probate.
The Biggest Issue in How to Probate a Lost Will: The Presumption of Revocation
When the original will goes missing, the court often asks one question first:
Did the decedent revoke it?
If the decedent kept the original will and the original cannot be found after death, the court may presume the decedent destroyed it on purpose.
You can overcome that presumption, but you need facts—not just suspicion. You strengthen your case when you show:
- the decedent did not control the original (for example, the attorney kept it), or
- someone else had access to the decedent’s papers, or
- a move, cleanout, emergency, or disaster explains the loss
In Order to Probate a Lost Will You Still Must Prove Proper Execution
A copy does not replace the signing ceremony.
You must still prove the will met New York’s execution rules—typically two witnesses, proper signing/acknowledgment, and other formalities.
In practice, people prove execution by using:
- witness affidavits or testimony
- the drafting attorney’s testimony or file records
- an attestation clause (and, if available, a self-proving affidavit)
You Must Prove the Contents of the Will
The court needs confidence that the document you offer matches what the decedent signed.
If You Have a Complete Copy
A full, legible scan often helps the most—especially if it includes the signature and witness pages.
You can support the copy with:
- attorney records that match the copy
- multiple consistent copies from different sources
- witness affidavits confirming the same document
If You Do Not Have a Copy
You can still try to probate the will, but the case becomes harder. You usually need two credible witnesses who can describe the will’s provisions clearly.
What Evidence Helps Most in NYC Lost-Will Cases?
Focus on evidence that answers three questions:
Where Did the Decedent Keep the Original?
- at home in a safe or file cabinet
- in a safe deposit box
- with the drafting attorney
- with a trusted advisor or family member
Why Is the Original Missing?
- a rushed apartment cleanout
- a move or renovation
- hospitalization or facility transfers
- fire, flood, or other disaster
- third-party access to papers (caregivers, relatives, building staff)
Why Should the Court Trust the Copy?
- the copy shows every page and looks complete
- the attorney file matches the copy
- witnesses confirm the same document
- no one produces a later will or codicil
While the Lost-Will Case Is Pending: You May Need Temporary Authority
Lost-will proceedings can take time—especially if witnesses must be located or someone objects. Meanwhile, real-life estate problems do not wait. Bills come due. Property needs attention. Accounts may require action.
In many cases, the family needs temporary authority from Surrogate’s Court so someone can handle urgent issues while the court decides whether to admit the lost will.
Depending on the facts, you may seek temporary letters of administration during the pendency of the lost-will proceeding. These letters can allow a fiduciary to take limited steps to protect the estate—such as:
- dealing with immediate expenses (funeral costs, rent, utilities, insurance)
- securing or maintaining real property
- preventing lapse of insurance coverage
- addressing time-sensitive banking or asset issues
- managing urgent tax or business matters
Temporary letters do not decide the lost-will case. They provide a way to keep the estate stable while the probate dispute (or proof process) plays out.
Hypothetical Examples: When NYC Surrogate’s Court Often Admits Lost Wills
These examples show how families typically meet the legal requirements. They are fictional and for illustration only.
Hypo 1: The Attorney Kept the Original
A Manhattan resident signs a will at her lawyer’s office. The lawyer keeps the original. After death, the lawyer cannot locate it due to an office relocation, but the file contains the final document, drafts, and execution notes. The witnesses sign affidavits confirming the signing.
Why This Often Works: You can explain the missing original without suggesting revocation, and you can prove execution and contents through the attorney file and witness affidavits.
Hypo 2: The Family Accidentally Throws Out the Original During a Cleanout
A Brooklyn decedent keeps the original at home. After death, the family clears the apartment quickly to meet a lease deadline. Someone throws out “old papers,” and the will disappears. A full PDF scan exists and matches the drafting attorney’s version. Family members provide sworn statements about the cleanout timeline.
Why This Often Works: The court may presume revocation at first, but a documented explanation plus a complete copy can rebut that presumption.
Hypo 3: Flooding Destroys the Original
A Queens decedent stores estate papers in a basement safe. Flooding ruins the original will. The family produces a complete scan. The drafting attorney confirms it matches the executed version, and the witnesses confirm the signing.
Why This Often Works: The facts support accidental destruction—not intentional revocation—and the scan plus testimony can prove execution and contents.
Hypo 4: Third Parties Had Access to the Decedent’s Papers
A Bronx decedent spends the last year in a supervised setting and rarely visits home. The original will should be in the apartment, but it disappears. A full copy exists. Evidence shows several people had access to the apartment and papers. The decedent repeatedly told family members the will stayed the same.
Why This Often Works: You can argue that someone else removed or discarded the will and that the decedent never revoked it.
What You Should Do Next If You Want to Probate a Lost Will
If you face a lost-will situation in NYC, take these steps right away:
- Search carefully and write down where you looked
- Secure the best copy you have (save the PDF; do not mark it up)
- Identify the drafting attorney and witnesses
- Collect proof that explains the loss (moves, cleanouts, disasters, third-party access)
- Flag urgent issues early (real estate, insurance, bills, tax deadlines)
- Ask whether you need temporary letters of administration to keep the estate protected while the case is pending
Frequently Asked Questions to Help You Probate A Lost Will
Yes, sometimes. You must prove non-revocation, due execution, and the contents of the will.
Expect the court to question revocation. You can still succeed, but you need evidence explaining why the original went missing.
Temporary letters can give someone limited authority to address urgent estate issues while the court resolves the lost-will proceeding—especially when delays could harm the estate.
Talk to RK Law About How To Probate a Lost Will in NYC
Lost-will probate rarely feels straightforward. You build a strong case by collecting the right proof early and presenting it clearly. You also protect the estate by getting the right temporary authority when urgent issues come up.
If you have a copy of a will—or you believe one exists—and you need help in NYC Surrogate’s Court, RK Law can help you evaluate the facts, gather evidence, and pursue probate.
Disclaimer: This article provides general information and does not provide legal advice.
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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