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What if a Decedent's Will is Lost or Cannot be Located?

If the decedent’s will cannot be located or is lost at the time of the decedent’s death, then the decedent will be deemed to have died intestate, and the heirs or beneficiaries will need to petition the New York Surrogate’s court for Letters of Administration appointing a personal representative to administer the estate so that the heirs and beneficiaries can receive their inheritances. In instances where there is a copy of the will and proof that the will may have been destroyed in a natural event such as a fire or flood, then the court may accept the copy as evidence that there is a valid will in place.

The court favors informal family agreements where the beneficiaries and heirs decide how they want to divide up the assets in an intestate estate. The court will approve the distribution as long as the court deems that the agreement is fair and equitable to all heirs and beneficiaries and that all interested persons have been informed and that they are in agreement with the decision.  Otherwise, the New York Intestate Succession laws will apply and assets will be distributed under those laws. A New York probate attorney can be beneficial in helping the beneficiaries and heirs negotiate an agreement, provide legal advice and assist with the winding up and closing of the estate.

Safekeeping of a Will

It is important when a person makes a will that they put it in a safe place where the executor or personal representative may be able to access it after the decedent’s death. It is a good idea to keep valuable personal items and legal documents in a safe deposit box at a bank, a home safe, or to at least give a copy to their spouse or children or keep it with their New York estate planning attorney so that in the event of one’s death, the will can be found and submitted to the court. This will save time and money so that the beneficiaries do not have to incur additional court costs and expenses and can receive their rightful inheritances in the manner that the decedent set forth in the will.

New York Intestate Succession

If the decedent does not have a will in place, the decedent’s wishes may not be carried out in the manner that the decedent wanted. Under New York probate laws, if the decedent has no children, the surviving spouse inherits the entire estate. If there is a surviving spouse and children, then the spouse receives the first $50,000 and one-half of all the remaining estate with the children inheriting the other half equally divided between each child. When there are children and no spouse, then the children inherit the entire estate which is divided equally amongst them. If a child of the decedent passes away prior to the decedent, then the grandchild will inherit that child’s portion of the estate. If there are no children, spouse or grandchildren, then the decedent’s parents, siblings and other family members such as nieces and nephews will inherit the assets of the estate.

It is recommended that the beneficiaries or heirs hire a New York probate attorney to assist them in making decisions and helping them comply with court deadlines and tax filings in order to wind up the estate in a lawful and timely manner.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at 718-509-9774.