Question: My mother recently passed away and I cannot locate her original Will; I can only find a copy. Can I submit the copy to the Surrogate’s Court for probate?
Answer: To begin, it is important to understand what it means to probate a Will. Probate is the court process whereby a Will is “proved” and accepted by the Surrogate’s Court as a valid document that is the true last testament of the decedent. The probate of a Will also serves to appoint the executor of the estate.
The Surrogate’s Court generally requires that the original Will of the decedent be presented for probate. However, if the original Will has been lost, the law allows for a lost Will to be admitted to probate if certain conditions can be met.
First, the Will must not have been revoked. In New York, there is a presumption that if the decedent had the Will in his/her possession at the time of death and the Will cannot be located, that the Will was revoked. This presumption must be overcome by the person petitioning the Court to have the copy admitted to probate, generally the nominated executor. It is important to note that, if the Will was not in the possession of the decedent at the time of death, this presumption is easier to overcome.
Second, the copy of the Will must be properly executed. Under New York law, proper execution, or “due execution”, requires that the testator sign the end of the Will in the presence of at least two witnesses, declaring that this is his/her Will, and the witnesses sign their names at the end of the Will in the presence of the individual at his/her request. Due execution can be established through testimony by the witnesses to the Will and/or the attorney draftsperson. Moreover, an attestation clause at the end of the Will and/or a witness affidavit may also be used as proof of due execution.
Additionally, a supporting affidavit must be submitted to the Surrogate’s Court at the time of filing the lost Will proceeding which should detail the facts and circumstances regarding the loss by the person who lost the instrument or a person with firsthand knowledge of the events. The supporting affidavit must allege that there was no revocation by the decedent of the instrument during his/her lifetime.
In the end, it is very important to keep your original Will in a safe place as the Surrogate’s Court has discretion on whether to admit a lost Will to probate. However, if the original Will has been lost, an attorney who specializes in the administration of estates can be an essential tool in navigating what can be a complex situation.
– Maria Johnson, Esq. and Nancy Burner, Esq.