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.