I’m the first to recognize the obvious: virtually no one but probate attorneys want to think about this kind of thing. Problem is, if you fail to think about these things, there’s a very good chance your will won’t be admitted to probate at all and your assets won’t go where you intended them to.
Let someone know where the original of your will is kept. It is very difficult to admit a copy of a will to probate. If no original is available, and the copy is not accepted by the probate court, then the deceased person’s property is treated as if the will never existed, and passes according to the state’s intestacy laws, which govern how property is passed down in the absence of a will. Sometimes these laws mirror the deceased person’s wishes, but far more often they do not.
For example, I was recently hired by a new client who is the pastor of a church. One of his parishioners died and left everything to the church and named the pastor as her executor. Before she passed away, the parishioner gave a copy of her will to her best friend with instructions to give it to the pastor when she died, which the best friend dutifully did. Recognizing that he’d been given a copy of the will (not the original), the pastor sought to contact the law firm that had created the will more than 25 years ago to ask about the original. However, the firm no longer existed, but had been acquired by a larger firm years back. When the pastor called that firm he was told that there was no record of the deceased person or her will in their system. That’s when the pastor called me.
A subsequent search of the deceased parishioner’s apartment did not yield the original will, either. Did that mean she never had it in the first place? Or did she lose it? Or did she revoke it by destroying it?
Under New York law, if a person is known to have had possession of the original of their will, but it is not found among the person’s possessions after they die, the will is presumed to have been revoked. It then becomes the burden of the person seeking to admit the copy of the will to probate to rebut the presumption. The copy itself is virtually irrelevant, other than to prove that a will was at some point created. It says nothing about whether the original was later revoked, or replaced with a new will.
At base, the only practical way to get a “lost will” (meaning a lost original) admitted to probate is to show that the deceased person did not have possession of the original at death, namely by demonstrating that the law firm that created the will had retained possession of the original and thereafter lost or destroyed it. Otherwise it’s difficult if not impossible to successfully rebut the presumption that the will was revoked, in which case the estate is passed down as if the will had never existed.
In the case of the pastor and his church, this would have been a devastating outcome. The estate was quite large. The pastor knew and ministered to the deceased parishioner until she died. She had no family. We were virtually certain she never revoked her will. But under the intestacy laws, nonfamily never inherit. Therefore, if the estate was administered according to intestacy laws, the entire estate would have gone to the NY state treasury since the deceased parishioner had no family, and since the church did not stand to inherit under the intestacy laws.
So I set to work trying to track down the original. First, I located the supervising attorney named in the copy of the will (who, fortunately, was still alive 27 years later). Understandably, he had no recollection of the will signing that had occurred so long ago, but he put me in touch with another former colleague who he thought might have an idea of what happened to the law firm’s records when it was acquired by the larger firm. When I contacted that person, I was told he believed that the larger firm had returned all originals to the clients of the smaller firm when it acquired that firm, but he wasn't sure. He then put me in touch with someone at the larger firm who he believed would know for sure what actually happened.
While I waited to hear back from that person, I lost sleep worrying about what would happen if it turned out the larger firm had in fact mailed the original will to the deceased parishioner many years earlier. Remember that the larger law firm had already told the pastor that the deceased person was nowhere to be found in their records. To me, this fact only seemed to increase the chance that the firm had mailed out originals many years earlier. If that proved true, I didn’t see how I could successfully rebut the presumption that the will was thereafter revoked, since it was nowhere to be found. I would have tried, of course, but I wasn't terribly optimistic.
However, a few days after I inquired with the larger firm they notified me that they did indeed have the original. A much-relieved me broke the news to my much-relieved client, and then I arranged to have the will delivered to my office, where it is now locked away in the secure room where I store originals of my own clients’ wills. It will remain there until I personally deliver it to the probate court.
So the story has a happy ending, but I shudder to think how different it might have been! And despite the happy ending, a lot of time, expense, and stress could have been saved had someone known where the original was located.
Keep a record of your family tree. Having an original will is the most important thing needed for a court to admit it to probate. However, there is more to the process. Most important is to be able to show the court who the deceased person’s family is—to be able to account for all the people who would inherit under the intestacy laws if there was no will. This might sound counterintuitive. After all, isn’t the point of a will to name the people you want to inherit your property, to the exclusion of everyone else? So why do you have to account for everyone else—parents, spouse, children, siblings, nieces, and nephews, whether alive or dead? The answer is that everyone who would stand to inherit if there was no will must be notified of the probate proceeding and given the opportunity to step forward and be heard if they have any objections to the will being probated. Such will contests are rarely successful, but anyone interested in the outcome of your estate has the right to notice.
So, when a person dies, the executor must account for the deceased person’s family by naming them all on the probate petition so that they can be notified, or, if a given family member is dead, by proving that the family member is dead. This is often achieved by having a disinterested party (someone who does not stand to inherit anything from the estate--either via the will or via the intestacy laws) account for the deceased person's family. Usually a close family friend or a very distant relative is the person who fills out what is called an Affidavit of Kinship, in which the person swears under oath who the deceased person’s family is and whether those people are alive or dead.
Sometimes this is a quick and easy process. Other times (more often than you might think) it proves impossible to find a disinterested party with the necessary first-hand knowledge. When that happens, the attorney handling the estate must perform a search to try and account for the family. Social Security Death Index and other official records are searched, occasionally a genealogist is hired, etc. If the attorney’s search doesn’t provide all of the information the court requires, then the court will order that a notice be published in a newspaper for four consecutive weeks, the idea being that family members might then see the notice and step forward if they wish to contest the will. What this all means in practical terms is that the start of the probate process is delayed by at least four weeks (usually more like eight, for reasons I won’t go into) and the estate bears the expense of paying the attorney to search for family and the newspaper for publishing the notice--easily several thousand dollars.
In the matter of the woman who left everything to her church, we’re still not sure we’re going to be able to find a disinterested party with all the family information we’re going to need. We know the deceased woman had no family, but we need someone who can prove it with sufficient first-hand knowledge. We have located some friends who might be able to give us the information we need. But if those friends can’t account for the deceased woman's family to the extent the court requires, we’ll be ordered to publish a notice. In the meantime, the whole process will grind to a halt.
The reason Whitney Houston came to mind is because, knowing how long some of my probate matters have taken to get moving due to issues like those discussed above, a few of my non-attorney friends have expressed surprise that the details of Whitney Houston’s will are already a matter of public record, so soon after her death. But the fact is, when an original will is quickly located, and family history properly documented, the probate process can get off the ground very quickly and at minimal expense. I have little doubt that the location of Ms. Houston’s original will was well known to either her attorney or someone else associated with her, and that steps were taken in advance to make sure the information needed to begin the probate process was readily available when time came that it was needed.
Getting a will is an important step in a person’s life, but it’s also important to take additional steps to make sure that, when the time comes, the will can actually be admitted to probate and that the probate process can begin quickly and at minimal cost. A good and thorough estate planning attorney will help make sure all the t’s are crossed and all the i's dotted when preparing your will and other estate planning documents. Failing that, a good probate attorney will do everything he or she can to make the probate process as quick, smooth, and economical as possible despite any shortcomings during the estate planning process.
But, forgetting about lawyers for a minute, a lot of potential trouble can be avoided by telling someone where your original will can be found, and by leaving some sort of family tree along with your will and/or telling a disinterested friend or distant relative about your family tree so that they have the information if they're later called upon to attest to it.
If you have any questions, or would like more information, please feel free to contact me anytime at firstname.lastname@example.org or 646-535-1529.
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