Where Do You Look?
One of the first things that you need to do when someone died is to locate that person’s will so that probate proceedings can begin. In many cases, the testator tells the executor during his or her lifetime where it is that they can find the will. However, there are times where the location of the will is unknown, meaning that the executor may have to do a bit of investigating to find its whereabouts.
The first place the executor should always check is with the decedent’s New York City estate attorney. Almost every time an attorney drafts a will for a client, they keep the original, along with other documents, such as witness affidavits, in a safe place where the attorney and the attorney’s staff will always have access.
If the will wasn’t drafted very long before, finding the attorney, and therefore the will, probably will not be very hard to do, meaning that a phone call or two would be all that is needed to find the will. However, if the will was drafted years or decades before, there could be some issues. If the New York City estate attorney who drafted the will retired or passed away, the wills that attorney-drafted were most likely passed along to another attorney. While the decedent would have most likely been notified of who it is that now has the will, that person may not have passed that along to the executor.
If the former attorney is retired, tracking it down may still be a matter of a few phone calls. If that attorney died, however, finding the attorney who took over keeping the wills will be harder to find out. Contacting your local bar association may be a good start, as it is likely that someone there may know. If the attorney who drafted the will worked for a firm when the will was drafted that is still in existence, that firm probably would still have the will, regardless of what happened to the individual attorney.
One complication for the executor would be if either the will was never in the possession of the drafting attorney or if the decedent wrote the will alone. In a case such as that, the executor would have to look in what would be the most likely places for the will to be. Usually, wills are kept with other important papers, which means they could be with those papers at home in a place such as a safe or a file cabinet.
If the potential executor has to look through a safe deposit box at a bank in search of the will, he or she would need to file a motion with the Surrogate’s Court to have the box opened, unless the executor is an authorized user of that box.
If the will remains lost after all of these efforts, it is very likely that the estate would be treated as if the person died without a will, meaning that intestacy succession rules would apply. If you have a copy of the will, you may be able to probate it – read this post.
If you need an attorney’s assistance in locating a will, call the Law Offices of Albert Goodwin at (212) 233-1233.