Lost Will: “I can’t find the original Will. Help!”

Lost Will: “I can’t find the original Will. Help!”

When someone passes away in New York with a Will, generally, the Will must first be proven as valid to the Surrogate’s Court Judge. Proving a Will as valid to a Court is known as the “probate” process. “Probate” is the Latin word for “prove”.

But what if the Will is lost? This happens more often than you think. The decedent made a Will, the attorney who drafted the Will sent the original document home with the decedent, and now, for some reason or another, the original Will cannot be found.

But there is hope. In New York State, in certain circumstances, a copy of a Will can be probated, meaning, the Surrogate’s Court will accept a copy of the Will as if it were the original, and honor the decedent’s wishes.

But certain requirements must be met before a copy of the Will can be probated.

First, it must be established that the Will was not revoked by the person who made the Will.

Second, it must be established that the original Will was properly executed.

Third, all of the provisions of the Will must be clearly and distinctly proven by at least two credible witnesses or by a copy or draft of the Will proven to be true and complete.

As part of my estate planning approach, photocopies of the original Will are made and stored on our office’s server. Digital images in .pdf format are sent to the client along with a hardcopy. Usually, so long as the client permits, I keep the original Will in our file for safe keeping.

If you are in possession of a copy of a Will (or even a destroyed Will) that you want to probate, you are encouraged to contact my office for assistance at (646) 820-4011 or djr@djrattorney.com.

Categories: Estate Litigation

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Frequently Asked Questions

If I petition to have a guardian appointed in a Mental Hygiene Law Article 81 proceeding, will I have to serve as guardian?

No. Even if you are the “petitioner” – the person who is asking the judge to appoint a guardian – you can ask the judge to appoint someone else. If there are no family or friends willing and able to serve, the judge can appoint a non-profit organization or “independent” professional guardian to serve.

My disabled child is about to turn 18. Am I automatically able to make decisions for them when they turn 18?

No (except for limited exceptions). In New York, parents are the natural guardians of their children until age 18. However, once a child reaches 18, even if they are developmentally or intellectually disabled, a parent cannot automatically make decisions for their adult child. Guardianship is often necessary for developmentally and intellectually disabled adults who do not have capacity to manage their own affairs without assistance.

If I am appointed guardian, can I force my ward to take psychiatric medication?

Although most guardians are authorized to make routine and non-routine medical decisions on behalf of their ward, the administration of psychiatric medication to a person who objects requires special authorization from a judge, even if you were already appointed guardian.

How long does it take to get a guardian appointed and authorized to act in a Mental Hygiene Law Article 81 proceeding?

There is no set time. However, from the time counsel is retained, it usually takes about 2-4 months total for the guardian to begin acting. However, if a guardian is needed immediately, the judge can appoint a “temporary guardian” while everything gets sorted out. This speeds up the process.

What is the difference between a guardian and a conservator?

Generally, none. New York used to use the terms conservator (today’s version of guardian of the property) and committee (today’s version of guardian of the person). Many states still use the term conservator, but the concept is the same.

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