A recent case decided in the Surrogate’s Court in Manhattan highlights the importance of keeping your original will safe, and keeping it where it can be found when the time comes. Here are the facts:
RS signed a will in 2002. He died in 2014. His wife was the sole beneficiary under the will. If the will were probated, the wife would get everything. If the will was not probated, then other heirs would stand to gain, and the wife would lose most of the inheritance that her husband left for her.
The will had been prepared by an attorney in 2002. The attorney was RS’s friend and business associate for some 20 years.
Problems arose when the original will could not be found. Only a copy could be located. The attorney stated that when he prepared the will in 2002, he gave the original to RS, and only kept a copy.
This was a problem because the law requires that the original will be produced and submitted to the court.
In the end, RS’s wife lost and only received a relatively small statutory portion of her husband’s estate. Other family members, who were intentionally left out of the will by RS, inherited the lion’s share of RS’s fortune, all because the existence of the original will could not be proven to the satisfaction of the court.
I have seen many cases over the years like this. A client comes in and is sure that her deceased relative had a will, but no one can find it. There is not much we can do in situations like that. Except in the most unusual circumstances, only an original will can be given legal effect in probate proceedings.
So how can you protect your will? (You DO have a will, right?) The best way is to file it for safekeeping with the Surrogate’s Court. For a $45 filing fee, the Surrogate’s Court will take your will and keep it in a large, secure, fireproof safe in the courthouse. This is a one-time fee, good for the rest of your life.
The court clerk will record the filing in the court’s computer system, so when the time comes, your original will can be found, and your final instructions can be honored.