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Ask Nancy…

Nancy Burner 2014 Headshot smby Nancy Burner, Esq. & Kera Reed, Esq.

Question: I recently executed my will and other estate planning documents. I want to keep it in a secure location; however I am concerned that I may store it in a place where my executor cannot find it. What happens if the executor cannot find my will when I pass away?

Answer: Once a person takes the time and effort to prepare their estate planning documents it is important that the originals are stored in a safe and secure location. The documents should be stored in a place where they can be found and utilized should they be needed.
There is a presumption under New York law that if the decedent’s will is known to have been in the decedent’s possession and cannot be located after his or her death that it was revoked. Unless the presumption can be overcome, the will’s terms are meaningless. The presumption of revocation exists even if a copy of the will can be located. The presumption can only be overcome if circumstances show that the will was not destroyed by the decedent such as in the case of a fire, natural disaster or other events that may have caused the unintended loss or destruction of the will.
A copy of a will can be probated under certain circumstances. The requirements to probate a lost will are set forth at SCPA § 1407 which provides that “a lost or destroyed will may be admitted to probate only if: (1) it is established that the will has not been revoked, and (2) execution of the will is proved in the manner required for the probate of an existing will, and (3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.”. It is difficult to meet the requirement of the first prong of the statute if the will was in the decedent’s possession at the time of death.
When the above criteria cannot be met, the will cannot be admitted to probate. This means that the terms of the will do not take effect and the assets pass to the decedent’s surviving family members pursuant to the laws of intestacy. It is as if the will did not exist. The persons inheriting under the laws of intestacy could be different then the persons the decedent intended to benefit under the will.
The take away from the above is that original estate planning documents, especially wills should be stored in a secure location. However, you should let the nominated executor know where the original will is stored so that they can access it when the time comes so that the unintended consequence of revocation can be avoided.

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