Articles Posted in Wills & Trusts

When an estate in New York is probated in Surrogate’s Court , it is a legal requirement to submit the original signed will as part of the Court filing. On occasion, the original will intended to be submitted may be lost or destroyed. There are several potential reasons for the original being unavailable, perhaps it is simply misplaced, a person adversely affected by the will may have intentionally destroyed the document or the decedent decided that the will no longer conformed to his wishes for the disposition of his property and destroyed the document prior to his demise.

Surrogate’s Court Procedure Act Section 1407, the statute that governs probate proceedings in New York State, provides solutions to this situation. In New York State, it is presumed that a will has been revoked if the original can no longer be located, particularly if it was signed and the original was known to be kept in the testator’s possession. The person proposing to have a copy or a draft of a will admitted to probate needs to demonstrate by clear and convincing evidence that the will has not been revoked, that the will was executed as required by New York State law, and that the testator had capacity to make the will, which was entered into without fraud or undue influence. At least two credible witnesses are then required to testify as to the provisions of the will or a copy or draft of the will that is true and complete is to be submitted to the Court. A photocopy of the will may then be admitted to probate in this instance if it is demonstrated that the original will was not last in the possession of the decedent. However, the fact that the testator possessed a fully executed copy of the will at his death will not prevent said copy from being admitted to probate.

Further, if the will was lost or destroyed by a cause not of the decedent’s act, the Surrogate’s Court will be likely to admit the will to probate. The witnesses may indicate that the will was destroyed without the knowledge or consent of the testator or that the will was destroyed when the testator was under undue influence or without mental capacity to revoke. Acceptable causes of destruction for these purposes include a fire at the facility where the will was stored. The recent anniversary of the terrorist attacks on September 11, 2001 reminds us that storage locations were also destroyed on that day and that important documents such as wills were also ruined. If the proponents of the will can show that the attorney who drafted the will or the bank with the safe deposit box holds the original, but for some reason cannot or will not release same, the Court will be likely to admit a copy of the document to probate.

Shortly after the death of a loved one, survivors often contact us with respect to our legal representation of the estate . This post discusses the practical steps recommended for survivors. There are multiple variables to be considered, such as whether the deceased made a valid Will, whether there are disputes among surviving family members, property owned and the like. While we advise clients not to make impulsive decisions soon after the death, there are particular matters that deserve immediate attention.

Securing property and personal possessions need to be high on a New York estate administrator’s checklist. There are unfortunate instances of people who read obituaries to determine the time and date of the funeral, so that they can enter the deceased person’s home to take valuable possessions. Likewise, if the survivors live out of state or the surviving spouse is ill, the home needs to be secured from vandals and thieves. Even family members who are estranged may seek entry into the home to obtain jewelry and valuable heirlooms. Domestic workers and caregivers may already have a key, gain entry to the home and leave with the family’s treasured belongings. The solution to these problems is for the estate representative to change the locks to the home and install or use an alarm system if possible. Even notifying the local police and requesting increased patrols may be prudent.

Other tasks to be completed quickly include having the mail held or forwarded and suspending newspaper and magazine deliveries. The property should be maintained as is customary, with regular landscaping and snow removal. Credit card accounts should be closed to prevent fraudulent transactions. Other accounts such as those with utility and telephone service providers should be terminated as soon as possible. Government agencies such as the Social Security Administration and Department of Veterans Affairs should be advised, so that survivor benefits commence as soon as possible. Applications for death benefits should be made with employers. Life insurance carriers should be notified so as to expedite claims. Health insurers should be advised of the death so that premiums do not continue to be charged. A lease for an apartment or other rental property should be surrendered as soon as practicable.