While it may be okay to hide your savings under the mattress, doing the same with your Will could have disastrous results. What happens if at the time of your death your Will cannot be found?
Your carefully laid out plans for the distribution of your estate could be completely upended and result in your assets being distributed against your wishes. Best practice is to seek the assistance of an attorney when drafting your Will. In addition to ensuring that it is properly drafted and executed so as to carry out your wishes after death, having an attorney involved can also be an important protection against losing the Will. After executing your Will, it is usually recommended that the attorney draftsperson keep the original Will in his/her files for safekeeping. But what happens if you don’t do so and, when it comes time to probate the Will at death, it cannot be found? While the burden is high, it is actually still possible to probate a lost or destroyed Will.
A proponent of a lost Will bears the burden of overcoming a presumption that it has been purposely destroyed and revoked. To do so, the proponent must prove three things: (1) the Will had not been revoked; (2) the Will had been properly executed as required by law; and (3) the provisions of it are clearly evidenced by at least two witnesses or a copy of the lost Will. The burden to prove these elements is extremely high and courts will often rule against a Will proponent even in the absence of any objections. The presumption can be overcome by proving the Will was lost or destroyed by an act outside of the testator’s control, such as a flood or fire.
The best way to overcome the presumption of revocation is to prove the Will was not in the possession of the testator at the time of death. If the original Will is kept by the attorney and a fire destroys the attorney’s office, for example, the presumption is put aside and a copy of the Will can be probated.
While it may still be possible to probate a lost or destroyed Will, it is best to avoid putting your loved ones in a situation where they must meet the difficult evidentiary burden. The safest course of action is to have your Will drafted by an attorney and leave it with him/her for safekeeping.
Michael Giannasca is with the law firm of Giannasca & Shook, PLLC.The Elder Law & Estate Planning Group of the firm handles all aspects of Elder Law including wills & probate, trusts & estates, Medicaid planning, guardianships, estate administration and litigation, and asset protection.Mr. Giannasca is a member of Elder Counsel, the National Academy of Elder Law Attorneys, the Elder Law and Special Needs Section and Trusts and Estates Law Section of the New York State Bar Association and the Trusts & Estates Section and the Elder Law Committees of the Westchester County Bar Association; 1 Barker Avenue, Suite 325, White Plains, NY 10601; 914-872-6000.
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28 Apr 2021
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While it may be okay to hide your savings under the mattress, doing the same with your Will could have disastrous results. What happens if at the time of your death your Will cannot be found?
Your carefully laid out plans for the distribution of your estate could be completely upended and result in your assets being distributed against your wishes. Best practice is to seek the assistance of an attorney when drafting your Will. In addition to ensuring that it is properly drafted and executed so as to carry out your wishes after death, having an attorney involved can also be an important protection against losing the Will. After executing your Will, it is usually recommended that the attorney draftsperson keep the original Will in his/her files for safekeeping. But what happens if you don’t do so and, when it comes time to probate the Will at death, it cannot be found? While the burden is high, it is actually still possible to probate a lost or destroyed Will.
A proponent of a lost Will bears the burden of overcoming a presumption that it has been purposely destroyed and revoked. To do so, the proponent must prove three things: (1) the Will had not been revoked; (2) the Will had been properly executed as required by law; and (3) the provisions of it are clearly evidenced by at least two witnesses or a copy of the lost Will. The burden to prove these elements is extremely high and courts will often rule against a Will proponent even in the absence of any objections. The presumption can be overcome by proving the Will was lost or destroyed by an act outside of the testator’s control, such as a flood or fire.
The best way to overcome the presumption of revocation is to prove the Will was not in the possession of the testator at the time of death. If the original Will is kept by the attorney and a fire destroys the attorney’s office, for example, the presumption is put aside and a copy of the Will can be probated.
While it may still be possible to probate a lost or destroyed Will, it is best to avoid putting your loved ones in a situation where they must meet the difficult evidentiary burden. The safest course of action is to have your Will drafted by an attorney and leave it with him/her for safekeeping.