Probate is the process in Surrogates Court where a Last Will and Testament is proved and accepted, an executor is appointed and all assets are distributed to the intended recipients as stated in the Will. Joint assets with a right of survivorship, life insurance policies or other assets that name a beneficiary are not probated. The probate process includes paying estate taxes, debts, taxes and administrative costs, as well as distributing assets to the intended beneficiaries.
Generally, the Surrogate’s Court requires an original Will to be presented for probate. However, the law allows for a lost Will or copy to be entered into probate so long as specific conditions are met. Among the conditions are as follows:
- The Will must not have been revoked – According to New York State law, if a decedent was in possession of a Will at the time of death and it cannot be located, then it is presumed to be revoked. A petitioner such as an executor, who is admitting a copy of the Will, can overcome this presumption. Also, if the decedent was not in possession of the Will, then the presumption is easier to overcome.
- A copy of the Will must indicate that the original Will was properly executed. According to New York State law, execution requires a signature by the testator before two witnesses as well as the witnesses’ signatures. Evidence of proper execution may be established through testimony, an attestation clause, or a signed affidavit.
- An affidavit setting forth the facts and circumstances surrounding the lost Will must be submitted to the Surrogate’s Court at the time of filing for a lost Will proceeding. In addition, the affidavit shall include that no revocation by the decedent occurred prior to death.
Because the Surrogate’s Court has the discretion to admit a lost Will into probate, it is important to properly store a Will in a safe place. However, if an original Will cannot be located, speak with an experienced estate planning or elder law attorney who can assist with this complex situation.
The experienced New York estate planning attorneys at Blodnick, Fazio & Associates PC help seniors and their families handle all aspects of estate planning. Our New York estate planning lawyers are trusted by their clients to handle each legal matter with diligence and compassion. With an office conveniently located in Garden City, Nassau County, the firm is dedicated to providing high-quality legal representation at reasonable costs. For more information or to schedule a consultation, contact our New York estate planning lawyers at (973) 256-0456.