Determining Custody of the Original Will in New York
When considering estate planning, a crucial question often overlooked is: Who should retain the original will? In New York, possessing the original document is vital for the smooth administration of an estate. Failure to produce the original may lead to complications and unintended consequences.
Significance of the Original Will
New York probate courts typically require the original, signed, and witnessed will to validate the document and initiate the estate administration process. If only a copy is available, significant legal obstacles may arise. For instance, additional affidavits or evidentiary hearings might be necessary to prove the will’s authenticity.
To prevent such challenges, it is crucial to store the original will in a secure yet accessible location. But who should be entrusted with this responsibility?
Options for Will Storage in New York
In New York, individuals have several choices for safeguarding the original will:
- The Testator (the will creator)
- An Estate Planning Attorney
- A Family Member or Trusted Individual
- A Safe Deposit Box
- The Surrogate’s Court
Self-Storage of the Will
Many opt to keep the will at home for immediate access, but this method carries risks such as fire, theft, or accidental loss. If choosing this route, utilize a fireproof safe and ensure a trusted individual knows its location and how to access it after your passing.
Additionally, maintain a list of essential documents and inform your executor about the will’s whereabouts. Executor responsibilities can be explored further on our Probate in New York page.
Attorney-Based Will Storage
Another common approach is entrusting the original will to your estate planning lawyer. This method is often deemed the safest as attorneys have secure storage systems and expertise in document management. At Morgan Legal Group, we offer secure will storage services to ensure document preservation and accessibility.
Furthermore, attorneys typically retain digital copies and related documents like trusts, powers of attorney, or health care proxies in one location.
Designating a Trusted Individual
Alternatively, the original will can be entrusted to a family member, friend, or executor. While feasible in reliable relationships, this approach poses risks of loss, misplacement, or disputes among heirs. If opting for this method, select a trustworthy individual and consider appointing them as the executor in the will.
Safe Deposit Boxes and Access Challenges
Some individuals choose to store their will in a bank safe deposit box for security. However, post-death access can be problematic as New York banks may require a court order for entry. This creates a dilemma if the court needs the will to appoint an executor. One workaround is co-leasing the box with a trusted individual.
Depositing the Will with the Surrogate’s Court
In New York, testators have the option to file their will with the Surrogate’s Court in their county. While less common, this method provides an official, court-stored version of the document. Note that filing incurs a small fee and may limit flexibility for future modifications. For more information, visit the official NY Courts website.
Addressing a Lost Original Will
If the original will is missing upon the testator’s death, New York law presumes revocation unless proven otherwise. This presumption can significantly impact the estate’s outcome. Admission of a copy to probate requires convincing the court that:
- The testator did not revoke the will
- The copy accurately represents the original
- A credible explanation exists for the original’s absence
Such scenarios often lead to costly probate disputes. Prevent this by securely storing the original will and ensuring its known location.
Best Practices for Will Storage and Accessibility
- Store in a fireproof, waterproof, and theft-resistant location
- Inform your executor and family members of the will’s storage
- Maintain backup copies with your attorney
- Update the will as circumstances change
- Consider utilizing Morgan Legal Group’s secure will storage service
Additionally, we offer assistance in Estate Planning, Guardianship, and Elder Law
