Who Keeps the Original Copy of the Will in New York City?

The testator should keep the original copy of the will. The last will and testament reflects the testator’s intentions and directions on how his assets should be distributed upon his death. It can be modified, amended, or revoked at any time by the testator prior to his death. For this reason, it is recommended that the testator always keep the original copy of the will but leave photocopies with his attorney and executor with instructions to his executor on where to find the will.

Why Should the Testator Keep the Original Copy?

When filing a petition for probate, the original will must be submitted to the court. A photocopy will not suffice, because there when there is no original copy of the will, it is presumed that the testator has intentionally destroyed and revoked the document. Having the original copy of the will allows the testator to easily revoke the will prior to his death simply by destroying it.

In order to facilitate a smooth probate process, the testator should keep his original and provide copies to both his attorney and executor with instructions to the executor on where his original will can be found. This procedure allows the testator to easily revoke his will, if he should desire to do so, and at the same time, give the executor a way to easily find the will, in case the will has not been revoked upon the testator’s death.

Can You Probate Lost Will?

In New York, a lost or destroyed will may be admitted to probate under SCPA § 1407 only if:

• It is established that the will has not been revoked, and
• Execution of the will is proved in the manner required for the probate of an existing will, and
• All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by copy or draft of the will proved to be true and complete.

New York courts have rarely admitted for probate a lost will, most especially if the will was last seen in the possession of the decedent. This is because a will that was last seen in the possession of the decedent is presumed to be intentionally destroyed and revoked if it cannot be found upon the decedent’s death. New York courts have to refused to receive in evidence witness testimonies regarding the decedent’s declarations about the existence of will shortly before decedent’s death, as this is considered hearsay. New York courts strictly observe the doctrine that, when a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator. It is the burden of the proponent of the lost will to prove that the lost will was not revoked by the testator during his lifetime.

This presumption of revocation, however, may be overcome by showing that the will was not lost in the possession of the testator, but in the possession of someone else, like the attorney-draftsman. Still, even if this presumption has been overcome, the lost will must be proven to be duly executed in the manner required for the probate of an existing will, and all the provisions of the will must be proved by submitting a copy of the will proved to be true and complete or by two credible witnesses who can distinctly prove all of the provisions of the will. Since it is more difficult for witnesses to remember all the provisions of the will, it is easier to prove all the provisions of the will by showing a photocopy of the will.

For the testator’s benefit, it is recommended that the testator have the original copy of the will so the testator can easily revoke it, if desired. Circumstances may change and the testator’s directions and intentions in the will may change as well. For this reason, having a copy in the testator’s possession can allow the testator to revoke it by destroying it.

Will matters can be complex and it is always advisable to have an estate planning attorney by your side to assist in the preparation of these estate planning documents. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].