Can I Probate a Copy of the Will in NY?

Testators, the people writing the will, are routinely counseled to securely store their will, whether that entails a secure vault or a filing cabinet. And while individuals usually adhere to this advice, the complementary component of this task is the ability to relocate the exact location of the will. NY Wills unlike any other documents have to be executed with 2 witnesses and a notary present and usually only originals are accepted in NY Surrogates (Probate) courts  because the mental state of the testator as well as the circumstances surrounding will’s execution matter.  The original will must be kept in a secure place by the testator or a NY attorney who presided over the will’s execution.  However, in the event an original will is lost, the question of whether a copy of the will can be probated in the jurisdiction of New York Surrogate's court is complicated.

Can I probate a Copy of the Will in NY?

What is a NY Last Will and Testament?

To start off, it is imperative to understand what needs to be included in a will for it to be valid in the state of New York.   In plain English a will is a legal document that directs how the testator's property shall be distributed in the event of his or her death.  In the absence of a will one’s property will be distributed in accordance with NY Intestate Succession laws (EPTL) instead of one’s wishes.   

While one can draft a last will and testament himself, it is strongly advised to seek the guidance of qualified NY trusts and estate attorneys as it’s practically impossible to execute the self-drafted will correctly.  Moreover, only a NY attorney can serve as a NY Notary for a will and it is highly unlikely that any lawyer would notarize the document not executed in his or her legal office.  

How are my assets distributed through a will in NY?

A properly drafted NY Last Will and Testament should appoint an executor, who is responsible for filing the will with NY Surrogates (Probate) court in the county where the testator died and distributing of all assets to the intended beneficiaries after the will is probated and 7 months have passed for all the creditors to come forward.   

The court then determines if the will is in fact the last testament of the testator as well as if the document itself is valid. Once the authenticity and validity are confirmed, the executor is officially given legal power to abide by the provisions of the will. 

If The Original Will is Lost, Can I Probate a Copy of a Will in NY?

What happens if the original will is lost?   Can a copy of a will be probated?  In the event the original will is lost and only a photocopy of the will is available, New York Surrogate's Court Procedure Act, Section 1407 kicks in. NY SCPA 1707 provides three stipulations that must be met in order to have a photocopy of a will admitted to Surrogate's Court.   An attorney filing a photocopy of the will in NY has a burden of proof to the Surrogate's Court that: 

a. Original will has been lost and the original will has not been revoked 
b. Proof that the will was properly executed
c. Proof that all provisions of the will are true and complete with a copy of the will or with 2 witnesses.

  1. The first requirement is ensuring the will has not been revoked. In New York, in the case of an absence of original will, the law is that the testator has revoked the will prior to his/her death. Wills are deemed to be revoked if the original document is destroyed and very often the testator creates a new will.  The burden of proof is on the attorney filing a copy in probate to show that that testator did not intend to revoke the will and that the original document was not intentionally destroyed, ignored, or refused. To provide such evidence is extremely difficult thus most of the time it’s impossible to probate a copy of the will in NY. 
  2. To demonstrate the proper execution of the will, it is essential that the will has been executed by the testator in front of the two witnesses and a notary and declared to be his/her last will and testament.  Thus one must prove that the original will that has been lost has been properly executed under an attorney’s supervision so the court can question the attorney on its execution. 
  3. Finally the last requirement is to file either a copy of the will in probate of use testimony of two witnesses to prove that all of the will provisions are true.  If the first 2 requirements are met it’s imperative to locate the draft of the will to prove that it conforms to the copy of the will.   

Who should hold an original will after its execution?

It is advised that an original will be left with the attorney who drafted and executed it with the client.  On the off chance that the will gets lost or destroyed while in the lawyer’s possession, a photocopy will have a higher chance of being probated with a lawyer’s affidavit that it was destroyed while in his/her possession.   Our law office had to probate a copy of the will inadvertently lost by another law office and we were successful at getting a probate decree on a copy of a will. 

In conclusion, the process of getting a photocopy of a will probated in NY can be a strenuous affair. To meet the high burden of proof undersigned above is close to impossible so it’s imperative that the original will is kept in a safe place and not destroyed.

Law Office of Inna Fershteyn and Associates, P.C.
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