One of the most important papers that are prepared in estate planning is a Last Will and Testament. A lot of time and effort can be spent when finalizing a Will. The process includes many items, such as (i) reviewing and understanding the assets that are to be a part of the plan; (ii) determining the persons who are to be estate beneficiaries; (iii) considering the amount of a bequest or the share of the estate that each beneficiary is to receive: (iv) deciding upon whether a beneficiaries’ share is to be paid outright or held in a trust for the beneficiaries’ benefit; (v) examining whether there are any tax planning provisions that can help save estate or income taxes; and (vi) choosing persons that may act as executors or trustees. The New York Probate Lawyer Blog has provided a great many articles regarding Wills and estate planning.Once a Last Will has been fully prepared, it is necessary to make certain that the Will is executed in accordance with the statutory formalities so that the document can be probated without complications. It is also imperative that once a Will has been finalized and signed, the Will should be kept for safekeeping in a manner that ensures its existence and availability for probate upon a person’s death.
In many instances the original signed Will is given to the testator. Problems arise when a person dies and the Will that the decedent had in his possession can no longer be found. Even if a copy of the Will is located, there can be great difficulty in probating the copy. In New York, when the original Will is known to have last been in a decedent’s possession and cannot be located after his death, there is a presumption that the decedent revoked the Will.
The Surrogate’s Court Procedure Act (SCPA) Section 1407 entitled “Proof of lost or destroyed Will” sets forth very strict requirements regarding the probate of a Will that cannot be found or has been destroyed. In a recent case decided by Manhattan Surrogate Rita Mella on January 4, 2017, entitled “Will of Joseph Robert Smith”, the Court refused to admit to probate a Will where the original document could not be located after the decedent’s death.
Probate attorneys typically advise that an original Wills should be stored in a secure location such as a filing cabinet with other important papers or a home safe. A safe deposit box in a bank can be used but it may be difficult and time consuming to gain entry into the box after someone dies. Also, a testator may want to consider informing a nominated executor or trusted family member as to the location of the original Will.
I have assisted many clients with issues regarding the creation and probate of a Will. Call me now if you want to discuss a problem concerning estate settlement or the Will probate process.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.