When someone dies in New York State, the court will be interested in seeing their original Will, as it is difficult to probate a photocopy. This is why it is important that the client retains either custody or knowledge of what happens to their original Will once they sign it.
While the choices are endless, there are four common choices that a client has:
1. The client holds onto their own original Will. What’s the benefit of doing this? You always know where it is. If you keep it among your important papers, when the client dies, their Executor will likely know where to find the original Will.
There is a downside to doing this, however. If a client retains their original Will but nobody is able to locate it upon the client’s death, there is a rebuttable presumption under New York State law that the client revoked the Will by destroying the original. Essentially, if the Executor cannot find the Will, the Court asks the Executor to “prove a negative”—that something did not happen—which is very difficult to do.
Maybe a client has lost their Will or it’s been kept in the basement and a flood destroyed it. Sometimes that is an acceptable answer to the Court. However, it’s often very difficult to satisfy the Court that something did not happen, and the Court will refuse to admit the Will to probate if you cannot locate the original. This may mean that the client’s preferred beneficiaries will receive nothing.
Therefore, if the client keeps the original Will, it’s important to know where it is, and even more important for the Executor to know where the original Will is. He or she will need to lay their hands upon it to offer it for probate.
2. Client gives it to somebody else. Giving it to somebody else is a fantastic option, because once the original Will is out of the client’s custody, there is no such presumption of revocation if the original Will cannot be found, and it’s significantly easier to probate a photocopy of the document.
The most likely person to hold the document is the Executor selected in the Will. For example, a client names her adult daughter as the Executor of her Will. The client gives her adult daughter the original Will and tells her that she will need to bring this to the probate court upon her death. If the daughter loses the Will, either just by misplacing it, or even if there’s some sort of flood or fire in her home that destroys it, there is no such presumption that mom revoked it, and the Court will readily probate a photocopy of the document.
Why might it be inappropriate to leave your original Will with your Executor or anyone else? First, the client may not want the Executor to know the contents of the Will. If the client doesn’t want anyone to know about their estate plan before they die, giving a copy of your Will to a third party can undercut that intent. Another common problem is that the client may live with their chosen Executor. Example: if I write a Will and name my spouse as the Executor and if that spouse resides with me, the problem is that the Will is in my home and the presumption of revocation I described above may apply under these circumstances.
3. Client leaves the original Will with the attorney who drafted it. What are the pros and cons of this choice? Well, the advantages of doing this include that you never have to wonder: “Where is my Will?” You know that your attorney has the original Will and most attorneys—myself included—keep client Wills in a safe deposit box or in some sort of fire-proof vault. Likewise, most attorneys—myself included—will give the client several xerox copies and/or a PDF, all of which are stamped with the location of the original Will and the attorney’s contact information, so that other people interested, such as the Executor, know where to find the original Will.
What’s the downside of leaving it with your attorney? Attorneys have a financial interest in holding on to original Wills. Why? We know that Executors need to come and see us after the death of the client to retrieve the original Will to offer it for probate. That makes it exponentially more likely that the nominated Executor will retain the lawyer who wrote the Will to offer the Will for probate, which means that the attorney will make more legal fees. This is something that I always discuss with my clients when they ask if I’m willing to hold the original Will.
(As an aside – are you wondering what percentage of my own clients leave their original Wills with me? Probably between 65-80%. Very often they tell me that they’ve chosen me as their lawyer because they like my style, my professionalism, and knowledge—and they would want nothing more than their Executors to work with me for a smooth transition of their assets. However, that is a personal decision for the client to make, and I certainly do not take offense if the client wants something else to happen to their original Will.
4. Client files their original Will with the probate Court during their lifetime. How does this work? The client would sign their Will with me, and bring their original Will to the Surrogate’s Court and pay the clerk the filing fee (presently $45.00). The client would fill out a form with the client’s and the Executor’s contact information, and the Court keeps the original Will forever. It is not kept as a public document, and no one is allowed to review it until someone shows up at the Courthouse with the client’s death certificate.
The real benefit of it is that, since the Court already has the original document, the Executor never worries about producing the original Will or someone not being able to find the original Will, because the Court already has it. What’s the downside? The downside is that the Court keeps the Will on file forever; if the client were to sign another Will later on, perhaps disinheriting a beneficiary with whom the client had a falling out, the Court already has the old original Will on file. That means that that beneficiary now has the legal authority to challenge the newer. For this reason, only a very small percentage of all clients choose to file their original Wills with the Court.
In conclusion, it’s essential that clients keep track of custody of their original Wills. If they’re going to retain it themselves, they need to keep it in a very safe place and ensure that their Executors know where it is located. If they’re going to give it to someone else, it’s important that the client be comfortable with doing so for the reasons I’ve outlined above.
Clients may choose to leave it with their attorneys subject to the attorney’s own pecuniary interests described above, or in some cases they may choose to file it with the Court. What’s most important here is that clients make an informed choice about what to do with their Wills. This is something that they should consider regardless of whether they have executed Wills by themselves, with a lawyer, or under the supervision of a lawyer. For more information on this topic, please contact me or the attorney of your choosing.