What Happens When You Lose a Will?
By Alan D. Feller, Esq.
Here is the scenario: You sign a document in front of witnesses which tells everyone in your life how your possessions and assets are to be divided. Then you stick it in a box where it remains for 20 or 30 years.
Hopefully, the people in your life are aware of the box. The length of time and storage methods utilized for original wills allow for numerous opportunities for disaster.
While scanning technology, portals and digital signing have devalued the importance of an original document in hand, a Last Will and Testament remains bound in tradition. A will is paper and ink. It is securely fastened. Wills with staples removed for copying are suspected of being tampered with and must be accompanied by a staple affidavit explaining the cause of the missing staple.
Missing staples are problematic, but a lost will can be extremely distressing. There are usually three storage spots that a will may be situated. At home, a fireproof box or important paper drawer is the most common spot.
The drafting attorney’s office may have the original will in a safe.
Finally, a safe deposit box in a bank was where generations of individuals placed valuable papers.
If a search of the home does not turn up the original will, then see if there is a copy of the will. Wills usually list the name of the drafting attorney either in the document or on the will cover. Knowing the name of the attorney will allow you to track down their office and inquire as to the original’s whereabouts.
If these steps fail to bear fruit and the decedent had a safe deposit box, a family member may be able to petition Surrogate’s Court to order the safe deposit box opened. An appointment with the bank is then set up and a professional will drill open the box to reveal its contents.
Exhausting all avenues leads us to the Lost Will Proceeding. If a will cannot be found, the law places the burden of proof on the proponent of the will (the proposed executor) to prove that the decedent did not destroy the will. Much of the evidentiary proof would center on the decedent’s organizational skills, hoarding tendencies and lack of any discussions on changing or destroying the will. Lost Will Proceedings can be difficult to successfully complete. The singularity and importance of an original will limits some of the discretion that a court exercises in non-will cases.
How do we deal with the inherent problems of storing an original will for decades? One way is to limit the will’s scope by having updated beneficiary forms for most financial accounts. This allows for easier distribution outside of probate. Creating trusts or life estates for deeded property will also ensure that property passes by operation of law and not through probate.
Having a will is very important; storing a will properly is just as important. Contact the professionals at Sloan & Feller today for more information.
Alan D. Feller, Esq. is managing partner of Sloan & Feller Attorneys at Law, located at 625 Route 6 in Mahopac. He can be reached at alandfeller@sloanandfeller.com.
