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Who Keeps the Original Will on Long Island, New York?

Posted on May 16, 2023


In the course of our lives, it is essential to plan ahead for our loved ones’ financial and emotional well-being when we are no longer around. Creating a will is a vital part of this planning, as it provides clear instructions on how to distribute our assets and handle other matters after our passing. However, having a will is not enough; it is equally important to store the original copy in a safe and secure location. This article explores the significance of a will, its key components, and the various options available for storing it on Long Island, New York. It also outlines the factors to consider when choosing a storage method and the process of retrieving the original will after the testator’s death.

Aside from drafting a will, it is also important to consult an attorney for keeping and securing an original will on Long Island, New York. A will is a legal document that outlines how a person’s assets will be distributed after their death, and if the original will is lost, damaged, or not properly executed, it may result in the assets being distributed in a way that the deceased did not intend. At Schlessel Law, PLLC, our team of experienced lawyers, led by Long Island estate planning attorney Seth Schlessel, understands the importance of allowing individuals the choice of how they want their assets to be distributed in a way that provides clarity and peace of mind for their loved ones. Our team of competent lawyers can ensure that the will is properly executed and provide guidance on any legal requirements that need to be met to ensure the validity of the will. To schedule a free consultation, call us today at (516) 574-9630.

Importance of a Will

A will is an essential legal document that outlines how an individual’s assets and properties will be distributed upon their death. Especially in this age of financial uncertainty, the importance of having a will cannot be overstated.

Moreover, securing and keeping the original will is just as important due to its critical role in ensuring the deceased’s final wishes are carried out accurately and legally. The original will serves as undeniable evidence of the testator’s intentions, providing clarity and preventing disputes among beneficiaries. By safeguarding this crucial document, one can maintain the integrity of the deceased’s estate plan, minimize the risk of fraudulent claims, and preserve the testator’s legacy with the utmost respect and fidelity.

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Definition and Purpose of a Will

A will, also known as a testament, is a legal document that expresses an individual’s wishes as to how their estate should be distributed after their death. It also appoints an executor to administer the estate and carry out the directives stated in the will. The main purpose of a will is to ensure that the deceased’s assets are managed and distributed according to their wishes in the most efficient and accurate way possible.

In some cases, the absence of a valid will can result in disagreements, confusion, and lengthy legal procedures, as the state then steps in to administer the distribution of assets according to intestacy laws. Such laws can vary depending on the place of residency, and might not necessarily distribute the assets in accordance with the deceased’s desires.

Key Components of a Will

According to New York statute, it is mandatory for the testator to be a minimum of 18 years old and possess a state of “sound mind and memory.” Typically, a will must be created in a physical format, specifically on paper. Moreover, to create a legally binding will, certain requirements must be met. While it is advisable to consult with an attorney for specific details and local requirements, the following components are generally necessary:

  • Execution of a Will: There are certain requirements that must be met for the proper execution of a will. Firstly, the testator must personally sign the will, or if directed by the testator, another person may sign on their behalf in the presence of the testator. In the latter case, the person signing must also sign the will and provide their address (although the absence of an address does not render the document invalid).
  • Witnesses: The signature on the will must be witnessed by at least two individuals. These witnesses can either observe the testator signing the will or receive confirmation from the testator that the signature is indeed theirs. The witnesses should sign the will within a 30-day period from each other, and include their addresses (although the omission of addresses does not invalidate the will).
  • Declaration: At some point during the execution and attestation of the will, the testator must inform each witness that the document they have signed is, in fact, their last will and testament.

By including these key components in your will and regularly reviewing it, you can ensure that your final wishes are legally binding and your loved ones are provided for according to your intentions.

Key Components of a Will Requirements Details
Execution Testator signs or directs someone to sign on their behalf in their presence If the testator is unable to sign, someone else can sign for them if the testator directs them to do so, and the person signs in the testator’s presence. The signature must be at the end of the will.
Witnesses Two witnesses must sign in the presence of the testator and each other Witnesses must be present when the testator signs or acknowledges their signature, and they must sign the will in the presence of the testator and each other. Witnesses must also include their full addresses.
Declaration Testator must declare the document as their last will and testament to the witnesses The testator must make a clear declaration to the witnesses that the document is their will, and the witnesses must understand that they are witnessing the execution of a will. This declaration can be made before, during, or after the signing of the will.

Benefits of Having a Will

Creating a will has numerous benefits for both the individual and their loved ones. Some of the most notable advantages include:

  • Take control of the distribution of your assets after your passing by creating a personalized will. By doing so, you avoid leaving the decision to the state and ensure that the right individuals receive their rightful inheritances. Failing to create a will can result in your assets ending up in the wrong hands.
  • Empower yourself to choose a trusted executor who will handle your estate affairs and asset management when you’re no longer around. Through a will, you can designate this person to fulfill important responsibilities such as asset distribution based on your wishes, debt settlement, tax payments, and more. Safeguarding the reliability and trustworthiness of your executor necessitates the creation of a will.
  • Prioritize the protection and care of your minor children by appointing a guardian through your will. Recognizing the immense significance of your children in your life, it becomes crucial to ensure their well-being even in your absence. By clearly designating a guardian in your will, you guarantee that your children will be looked after according to your wishes.
  • Maintain the flexibility to modify your will while you’re in good health. Have you had a change of heart regarding inheritance or wish to allocate assets to a different beneficiary? Have your financial circumstances or assets undergone alterations? In such cases, it may be necessary to update your will. Remember, a will can be revised at any time when you are alive and well.
  • Experience a profound peace of mind for both yourself and your family by having a well-thought-out plan in place. Knowing that you have taken the necessary steps to secure your affairs brings a sense of calm and assurance. Without a will, concerns about the handling of future matters may linger, creating unnecessary worries.

In summary, by taking the time to create a well-crafted will, you may be able to ensure a smooth transition of your estate, provide for your loved ones, and leave a lasting legacy that reflects your values and intentions.

Necessity of Storing the Original Will

A will is a crucial legal document that outlines the distribution of a person’s assets and estate after their death. Proper storage of the original will is essential to ensure that the testator’s wishes are respected and executed accordingly. 

Difference between Original and Photocopies

The original will is the actual document that was signed and dated by the testator in the presence of witnessing parties. The original document carries more significant legal weight and is predominantly required when the court is asked to approve the will as valid, a process known as probate. Photocopies, on the other hand, are exact reproductions of the original document made by a copying machine. They typically do not have the same legal weight and may not be sufficient evidence of a testator’s intentions in probate proceedings.

A photocopy will usually not be considered an authentic will by the probate court, as it lacks essential elements such as original signatures, initials, and dates. Additionally, a photocopy may not accurately represent any alterations or annotations made on the original will after it was initially drafted. In some cases, a testator might have intentionally destroyed the original will to revoke it, and relying on a photocopy can lead to the distribution of the estate against their intended wishes.

Legal Requirements for Presenting the Original Will

When a person dies, the probate court evaluates their will to authenticate it and confirm that it abides by the legal requirements. The original will is usually required in this process, and failure to produce it may lead to significant delays, increased expenses, and potential disputes among beneficiaries.

In New York, a party applying for probate must provide the original will along with relevant application forms and supporting documents. The Surrogate’s Court then examines the will thoroughly to ensure that it meets the requirements such as being in writing, signed and dated by the testator, and witnessed by appropriate parties. Moreover, the court might check for any signs of tampering, alterations, or inconsistencies that might invalidate the will.

If the original will cannot be found or is accidentally destroyed, the probate court may require the party applying for probate to provide substantial evidence to prove that the testator intended the photocopy of the will to be considered as the original. This could entail an exhaustive process, including gathering testimonies from witnesses who saw the testator sign the will or obtaining expert opinions on the authenticity of the photocopy.

Challenges Due to Lost or Damaged Original Will

Losing or damaging the original will can result in several challenges during the probate process, including delays, increased costs, and potential disputes among beneficiaries. Some of the issues that may arise due to a lost or damaged original will include:

  • Presumption of Revocation: When an original will cannot be found, the court may assume that the testator intentionally destroyed it to revoke its provisions. This assumption can only be overturned with strong evidence to prove that the will was never revoked.
  • Burden of Proof: If the original will is missing or damaged, the party applying for probate must produce extensive evidence to prove the validity of a photocopy, if available. As mentioned earlier, this may involve testimonies from witnesses, expert opinions, and comparisons with other documents signed by the testator.
  • Disputes among Beneficiaries: When a will is lost or damaged, it may create doubts among beneficiaries about the testator’s intentions. This situation might lead to disputes, litigation, and a prolonged probate process, adversely impacting the estate’s distribution and the relationships among the beneficiaries.

Safeguarding the original will and ensuring its accessibility after the testator’s death is essential to avoid numerous challenges and complications that may arise due to a lost or damaged original will.

Options to Store Original Will on Long Island

Creating a will is an essential step in estate planning. However, the existence of a will is of little value if it cannot be located after the testator’s death. Properly storing the will is crucial to ensure that the testator’s assets and possessions are distributed according to their wishes. There are several options for storing an original will, and each has its advantages and drawbacks. This article discusses four common storage options on Long Island, New York: at home, in a safe deposit box at a bank, with an attorney, and at New York’s Surrogate’s Court.

At Home

Some people may choose to store their will at home, which can be convenient but also fraught with risks. A fireproof, waterproof safe should be used to protect the document from damage, theft, or accidents. Burglary, fire, or natural disasters could result in damage or loss of the will. Moreover, the will’s location should be communicated to a trusted family member, executor, or friend to prevent it from being misplaced or overlooked.

One advantage of keeping the will at home is that it is readily accessible, making it easier to update or review when necessary. However, storing a will at home is generally not the best option, especially if the testator is concerned about confidentiality or the risk of the document being lost or damaged.

Safe Deposit Box at a Bank

Safe deposit boxes at banks are commonly used for securing valuable documents, including wills. These boxes offer greater security than storing at home, protecting the will from theft, fire, and other disasters. They also provide a level of confidentiality since only authorized individuals can access the box.

However, there are potential pitfalls to using a safe deposit box for storing a will. In some cases, the safe deposit box may be inaccessible to the family or executor until the bank receives proper authorization. This could cause delays in the probate process, as the bank may require a court order to grant access to the safe deposit box. Additionally, renting a safe deposit box incurs a recurring fee, which may not be desirable for all individuals.

Entrusting to an Attorney

Entrusting the will to an attorney offers several benefits, including convenience, security, and professional management. An attorney who has drafted the will is often the best choice for this option since they are already familiar with the testator’s estate plan. Attorneys are typically required to maintain a safe and secure location for storing clients’ original documents, thereby ensuring the will’s protection. Additionally, assigning the attorney as the executor of the estate can streamline the probate process.

There are some potential disadvantages to this arrangement as well, such as the attorney retiring, relocating, or passing away. To counter this, the testator should ensure they have a clear understanding of the attorney’s document-storage practices and ensure that their personal representative or a trusted family member knows the attorney’s contact information. This combination of security and accessibility typically makes leaving a will with an attorney a favorable option.

New York’s Surrogate’s Court

Another option specific to New York State is the Surrogate’s Court Filing System. The Surrogate’s Court is responsible for overseeing the probate process, making it an appropriate institution for storing original wills. For a one-time fee, the court will store the will in a secure location, providing both protection and accessibility. The court will also issue a receipt for the will, which should be kept in a safe place as it serves as proof of the will’s existence.

While this option provides the added security of a court institution and ensures access for authorized individuals, it may not be the most convenient choice for individuals looking to revise or review their will regularly. Additionally, the will’s location should be communicated to a trusted person to ensure it is not forgotten or overlooked.

In conclusion, there are several options for storing an original will on Long Island. These options include at home, in a safe deposit box at a bank, with an attorney, and at the New York Surrogate’s Court. Each option has its advantages and disadvantages, so individuals should carefully weigh their preferences and consider the level of security and accessibility that best suits their needs.

Retrieve the Original Will After a Testator’s Death

Retrieving the original will after a testator’s death is an essential part of initiating the probate process. The executor, an attorney, or a storage facility may be responsible for locating and preserving the will, depending on where it was kept. Here, we will discuss the process and responsibilities of each party and further steps required for administering the testator’s estate.

Process for Executors

As an executor of an estate, it is crucial to locate and access the original will as promptly as possible. This task typically involves the following steps.

  1. Finding and Accessing the Original Will: The executor should start by searching the testator’s personal belongings and important documents. Common storage places include a safe deposit box in a bank, a home safe or fireproof box, or a secure filing cabinet. The testator may have also informed the executor or other trusted individuals about the will’s whereabouts. If the will is not found in the testator’s possession, it could be held by an attorney or at a specialized storage facility. The executor should contact the testator’s attorney, financial planners, or tax advisors to inquire about any knowledge of the will.
  2. Submitting the Will to the Surrogate’s Court: Once the original will is located, the executor must submit it to the Surrogate’s Court to initiate the probate process. The court typically requires the will, proof of the testator’s death (such as a death certificate), and other essential documents. The executor may also need to provide their photo identification and contact information. It is essential to consult with an attorney to ensure compliance with all applicable probate procedures and requirements.
  3. Probate Process: The probate process involves validating the will, identifying and informing creditors and beneficiaries, paying outstanding debts and taxes, and ultimately distributing the assets as per the will. The executor is also responsible for managing the estate throughout the probate process, which may include filing necessary documents, providing notifications to interested parties, and accounting for the estate’s assets and liabilities.

Navigating the process of locating the original will and initiating the probate process can be complex, but with careful attention to detail and compliance with all relevant procedures and requirements, the executor can fulfill their duties with confidence.

Responsibilities of the Attorney or Storage Facility

If the original will is held by an attorney or a storage facility, they also have vital responsibilities to fulfill upon the testator’s death.

Notifying Executors and Beneficiaries

Upon the testator’s death, the attorney or storage facility must notify the executor or other interested parties (such as beneficiaries) about the will’s existence and location. They will also need to provide the necessary information or documents to the executor to facilitate the estate administration process.

If the testator has not specified an executor or beneficiaries, the attorney or storage facility might need to take additional actions. They may need to search for and contact potential heirs, perform an investigation in coordination with the local court system, or inform relevant government agencies or financial institutions.

Releasing the Original Will

The attorney or storage facility should release the original will to the executor or their designated agents upon providing proper identification and proof of the testator’s death. In some circumstances, the holder of the will may be required to deliver the original will to the Surrogate’s Court or other competent authorities.

It is essential for the will holder to preserve the will’s safety and confidentiality throughout this process. They must also ensure compliance with all applicable laws, regulations, and professional responsibilities governing the handling of wills and deceased clients’ affairs.

Schedule a Consultation with our Top-Rated Long Island Estate Planning Attorneys at Schlessel Law, PLLC

Our experienced Long Island estate planning attorneys at Schlessel Law, PLLC, led by Seth Schlessel, understand the importance of keeping an original will securely to protect it from loss, damage, tampering, and to facilitate a smooth probate process. Storing an original will properly can help preserve the testator’s intentions and ensures that their wishes are fulfilled as intended. Our legal team can provide guidance on ways to properly store and secure the will to ensure its safety and accessibility when needed. Our attorneys can also help prevent disputes or challenges to the validity of the will in the future. If you would like to explore how we can assist you with your will, contact us at (516) 574-9630 to arrange a complimentary consultation.

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