Not only is it critical to have a Last Will and Testament, but once you sign a Will, it is critical to safeguard that original document. If your original Will document is lost or destroyed by fire, your intentions may be disregarded because there is no record of them. Even if a photocopy of the original signed Will is located, the photocopy cannot be probated without a court order, as explained below.
Probate is when a named executor takes a decedent’s original Will to a county Surrogate’s office to have that Will filed and obtain appointment as the estate’s executor. The Surrogate’s office by law can only probate an original will. If the executor cannot find the original Will, then the executor must file court papers in that county’s probate court seeking permission to probate the copy in the absence of the original Will.
The executor must convince the probate court that the fact that the original Will cannot be found does not mean that the executor intended to revoke it by destroying it. In other words, to obtain court-approved probate of a photocopy of a Will, the executor must produce some evidence that the decedent likely lost the Will and never expressed any intention to revoke it.
In the recent case of in re estate of Scheneker, a New Jersey appellate court allowed an executor to probate a photocopy of a Will where the executor proved that “whatever may have happened to the original (will, the decedent) did not intend to revoke it.
This ruling should help those executors who are not in possession of the original Will, but the best result is to avoid the time and expense of going to Probate Court for probate, and this is accomplished by safeguarding the original Will.
The overwhelming majority of our clients choose to have my firm hold the original Wills in our firm’s safes which are fireproof. Wherever the client chooses to house their original Will, it is important that clients understand the importance of retaining the original Will in a location where it can be found and not damaged by flood or fire. Don’t let this happen to you or a loved one by protecting your original documents today.
