New York Estate Planning & Elder Law Blog
A last will and testament is an incredibly important document that needs to be kept safe and help ensure that when your estate passes through probate, New York courts will allow your executor to carry your final wishes and disperse assets to your heirs. After taking all of the important steps like consulting with family members, working with a trust and estate attorney, and finally drafting the last will and testament, great care needs to be taken in storing the original copy of the will to make sure the estate can pass through probate courts as quickly as possibly and make the job of the executor that much easier.
To preserve the original copy of their last will and testament, testators (the person creating the will) have a number of options to preserve the original copy of their executed will. Many people elect to keep their executed will in a safe deposit box at a bank or other secured facility. It is important to note that no matter where the document is kept safe, the executor must know the location of the last will and testament to pass the estate through probate.
New York probate law holds that if the original executed copy of the last will and testament is lost, the probate court will presume the testator meant to revoke the document and proving anything to the contrary can be a difficult, time consuming, and expensive endeavor. Even if a bona fide copy can be produced, New York probate courts will likely not accept the document and enter it as a copy of the will.
If an executed copy of the will cannot be produced, the probate court will likely treat the estate as intestate, which means there is no last will and testament and the estate must be divided in accordance will predefined succession laws. Under this scenario, beneficiaries outside of immediate family can be excluded from receiving portions of the estate they would have otherwise received if the testator’s final wishes had been carried out.
In New York, this usually means the surviving spouse will receive 30 percent of the estate and the rest divided by surviving children. Otherwise, next living relatives like parents and siblings will receive the estate. Only in very rare situations would the state seize the assets for itself but to be safe, the executed copy of the will needs to be kept secure.