Crafting a will is a cornerstone of the estate planning process and crucial to ensuring all your hard-earned assets go where they should. Unfortunately, it’s all too easy to lose track of this important document as the years go by. If a loved one passed away but you can’t find their will, you could run into serious issues during the probate process.
Under normal circumstances, as our Brooklyn estate planning attorney explains, the probate court requires the actual original document. It is possible for a copy to be accepted if the original was misplaced or destroyed, but only under very specific conditions.
What to Do First If a Will Is Lost in New York
Losing a will can be extremely frustrating, especially during an already emotional time while dealing with the loss of a family member. You know the will existed. You and your loved one talked about it and how the estate should be divided. If it can’t be found though, the probate court may decide to ignore those wishes entirely.
Here’s where things can get tricky during probate. Legally, throwing away or knowingly destroying an original will is considered “revoking” the will on purpose. Many people need to alter their will over time as families change or expand. The court assumes that if someone took the time to make a will, but then the will can’t be produced during probate, that means they didn’t want it used and intended to make changes.
That may not have actually been the case though, especially if the will was accidentally lost or forgotten about and not filed properly. It could have been tossed in a move, lost in a fire, or inadvertently destroyed some other way.
In cases where the will wasn’t purposefully revoked but is just lost, it may be among your loved one’s effects in a box, file cabinet, folder, or some other location. Every possible avenue to find the original should be used first, including:
- Checking if there is a bank safe deposit box or a security box at the office
- Reviewing financial statements to find the name of the law firm that drafted the will
- Speaking with insurance agents, financial planners, or any other advisors who may know the location of the will or the name of the deceased’s estate planning lawyer
- Talking to friends and family if you can’t find documents with attorney letterhead or bank statements that reveal the attorney's name
How to Submit a Lost Will to a New York Probate Court
When the original document is well and truly lost, the Surrogate's Court Procedure Act allows for a copy of a misplaced or destroyed will to be probated anyway, but there are stringent rules that must be followed. To use a copy of a lost will, these three conditions must be met:
- Establish the original will wasn’t intentionally revoked by the deceased before death
- Show that the will was properly executed in the first place and signed in the presence of witnesses
- Produce either a photocopy of the original or provide two witnesses who can attest that the contents of the will being submitted are accurate
A lawyer can help you meet those three criteria, but it’s important to understand that the court can choose not to accept the copy—which is why it’s better to exhaust all other options in finding the original first.
If it isn’t accepted, the court will proceed as though the person died intestate. That means a probate court representative will decide how creditors should be paid and assets divided up among heirs, regardless of the deceased’s specific wishes. In that case, an attorney is crucial to fighting for your family’s legal rights.