Probating a Copy of a Will in New York

Reviewed by Albert Goodwin, Esq., a New York estate litigation attorney admitted in New York and Florida. Last updated: June 2024.

When the original signed will cannot be found and all that survives is a photocopy or draft, New York permits the will to be admitted to probate as a lost or destroyed will — but only if a strict statutory test is satisfied. This page explains the controlling law under SCPA § 1407, how the Surrogate's Court applies the presumption of revocation, and what proof a proponent must assemble. (If your question is instead whether you are entitled to receive a copy of a will as a beneficiary, see our separate page on whether beneficiaries are entitled to a copy of the will — that is a different question from probating a copy.)

SCPA § 1407: The Statutory Framework for Lost Wills

New York's procedure for probating a lost or destroyed will is governed by SCPA § 1407. A lost will may be admitted to probate in New York only if all three of the following are established:

1. The will has not been revoked.
2. Its execution is proved in the manner required for the probate of an existing will.
3. All of the will's provisions 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.

Each element carries its own evidentiary burden. Failure to satisfy any one of the three means the lost will cannot be admitted, and the estate may pass by intestacy instead. Because the statute is applied strictly, lost-will proceedings in the Surrogate's Court — whether in New York County, Kings County, Queens, the Bronx, Richmond, Nassau, Suffolk, or Westchester — tend to be evidence-intensive and contested.

The Presumption of Revocation

The most difficult element is usually the first. Under long-settled New York law, where a will was last known to be in the testator's possession but cannot be found after death, there is a rebuttable presumption that the testator destroyed the will with the intent to revoke it. New York courts have applied this presumption for well over a century — it traces back to cases such as Collyer v. Collyer, 110 N.Y. 481 (1888), and continues to be applied by the Surrogate's Courts and Appellate Division today. The rationale is practical: a testator who wants a will to govern his estate does not ordinarily destroy it.

The proponent of the lost will bears the burden of rebutting this presumption with affirmative evidence that the will was lost rather than deliberately revoked, or that the testator's intention to keep the will in force continued until death. Evidence used to rebut the presumption includes:

• Statements by the testator confirming that the will remained in force.
• Evidence that the will was kept somewhere other than in the testator's exclusive control.
• Evidence of fire, flood, theft, or other accidental loss.
• Continuing consistency between the testator's stated wishes and the terms of the lost will.
• The absence of any later will or revoking instrument.

Critically, the presumption does not arise at all where the will was not in the testator's possession. If the drafting attorney retained the original, or it was held in a safe deposit box or by a trusted third party, loss from that location is more readily attributed to accident than to revocation, and the proponent's path is considerably easier.

Proving Due Execution

The second element requires proof that the will was validly executed under EPTL § 3-2.1 — the statute setting out New York's formalities (signature at the end by the testator, publication, and two attesting witnesses who sign within thirty days). Without the original document, due execution is typically proved through:

• Witness testimony. The attesting witnesses testify to the formalities they observed at the signing.
• Drafting attorney testimony. The supervising attorney testifies to the execution ceremony, which can give rise to a presumption of regularity.
• The self-proving affidavit. If a copy of the SCPA 1406 self-proving affidavit survives, it can establish due execution on its own.
• Evidence of standard practice. Where the drafting attorney can describe a consistent execution routine, that supports an inference the formalities were followed.

Proving the Contents

The third element requires proof of exactly what the will said. The traditional rule demanded the testimony of two credible witnesses to the will's provisions; modern SCPA § 1407 expressly allows a true and complete copy or draft to substitute for that testimony.

A complete photocopy showing all execution areas filled in — the testator's signature, both witnesses' signatures, and the notary's seal and signature — is generally the strongest proof of contents. A bare draft or word-processing file that shows no signatures is far weaker; an unsigned conformed copy may indicate only that a will was prepared, not that it was executed in that form. The court weighs the available evidence against all the surrounding circumstances.

Why a Photocopy Alone Is Not Enough

Families often assume that producing a clean photocopy will end the inquiry. It does not. A copy satisfies only the third element — contents. The proponent must still independently rebut the presumption of revocation and prove due execution. Where the original was last in the testator's hands and is simply missing, even a perfect photocopy may be rejected if the presumption of revocation cannot be overcome. This is the single most common reason lost-will petitions fail in New York.

Common Lost-Will Scenarios in New York

• The drafting attorney retained the original, but the attorney has died or retired and the firm no longer has the file.
• The testator stored the will at home and the home was damaged by fire or flood.
• The testator moved repeatedly and the will was misplaced during a move.
• The will cannot be located despite a diligent search of the testator's records.
• The family member who knew where the will was stored died without telling the executor.
• The testator entered a nursing home and personal property went to storage, where the will was lost.

Each scenario presents distinct proof problems, and each affects whether the presumption of revocation applies.

The Search Requirement

Before filing a lost-will petition, the proponent must conduct a thorough search for the original and describe those efforts in detail in the petition. A perfunctory search will not satisfy the Surrogate's Court. Reasonable search efforts typically include:

• The testator's home — safes, file cabinets, desk drawers, and other likely storage spots.
• The drafting attorney's office, which may have retained the original.
• Any safe deposit boxes the testator rented.
• Storage units and other off-premises storage.
• The Surrogate's Court, where a testator may have deposited the will during life under SCPA § 2507.
• Friends and family members who may have been entrusted with the document.

What Happens If the Lost-Will Procedure Fails

If a lost will cannot be admitted to probate, the testator is generally treated as having died intestate, and the estate is distributed under EPTL § 4-1.1, New York's intestacy statute. Under that statute, the surviving spouse takes the first $50,000 plus one-half of the balance, with the remainder to the decedent's children; if there is no spouse, the children take in equal shares; and where there is no spouse or descendant, the estate passes to parents, then siblings, then more remote relatives. This default distribution can differ dramatically from what the lost will provided — which is precisely why careful storage of an original will, or deposit of the will with the Surrogate's Court, is so important. To open an estate where no will can be probated, see our pages on estate administration and letters of administration.

Frequently Asked Questions

Will the Surrogate's Court accept a photocopy of a will?

A complete photocopy can be used to prove the contents of a lost will under SCPA § 1407, but it does not by itself satisfy the statute. The proponent must also prove due execution and rebut the presumption that the missing original was revoked.

What if the witnesses to the will have died?

Due execution can still be proved through the drafting attorney's testimony, a surviving self-proving affidavit, or other competent evidence of the execution ceremony. The death of the witnesses does not automatically defeat the petition, but it raises the evidentiary burden.

What if the original was last in the testator's possession?

Then New York applies a presumption that the testator destroyed and revoked the will. The proponent must overcome that presumption with affirmative evidence of accidental loss or continued intent before the copy can be admitted.

What happens if the lost-will petition fails?

The estate is generally administered as if the decedent died intestate and is distributed under EPTL § 4-1.1, which may produce a very different result than the will intended.

Speak With a New York Estate Attorney

Probating a copy of a will in place of the original raises some of the most fact-intensive questions in New York estate law, and the outcome often turns on how thoroughly the proponent documents the search, the execution, and the testator's continuing intent. To discuss a lost or destroyed will, you can call the Law Offices of Albert Goodwin at (212) 233-1233. Related reading: will contests, a sample NYC probate timeline, and how to avoid probate in New York.