Once a will is created, it should be stored in a safe and secure location. Otherwise, if it cannot be located, proving it once existed and that is what was not revoked can get complicated. Continue reading to discover what evidence you need to support the lost will and how an experienced Nassau County estate planning lawyer can help you take the appropriate steps.
What happens if there is a lost will in New York?
There is a presumption under New York law that if the deceased’s will is known to have been in the decedent’s possession and cannot be located after their death, it was revoked. Notably, even if a copy of the will can be located, the presumption of revocation still stands. The presumption can only be overcome if it can be proven that an event may have caused the unintended loss or destruction of the will, such as in the case of a fire or a natural disaster.
What evidence is needed to support the lost will?
If a will is lost in the state of New York, the case is litigated in probate court, otherwise known as the Surrogate Courts, where testimony is taken to prove the former existence of the will and the lack of revocation. If a copy of the will is located, it must be proved to be true and complete during testimony, and even then, the presumption of revocation exists. The statute states that a lost or destroyed original will may be admitted to probate only if the following are met:
- It is established that the will has not been revoked.
- Execution of the will is proved in the manner required for the probate of an existing will.
- All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses. Said witnesses must have been present during the writing of the will or had first-hand knowledge of its existence. Other than parol evidence, the witness can bring forth other evidence in the form of documents and drafts.
When the above criteria cannot be met, the presumption cannot be overcome and the terms of the will are meaningless. Further, the terms of the will do not take effect and the assets pass to the deceased’s surviving family members pursuant to the laws of intestacy. These persons could be different than the persons the deceased intended to benefit under the will.
Even if the court concluded that a finalized will was in fact lost, the court must determine whether or not it was properly executed.
Contact a skilled Nassau County estate planning attorney today to assist you through this process.
Contact Our Experienced Nassau County Firm
Barrows Levy PLLC is a dedicated New York law firm focused on providing quality legal services to clients in New York City and Long Island. If you require a lawyer who has notable experience handling family and estate planning matters, we are available to help. Contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
