SAFEKEEPING OF WILLS

Have you had a Last Will and Testament prepared by an attorney? Are you holding the original Will? If you are, this may be of interest to you.

Do you know the consequences should the original Will you hold in your possession become lost, damaged, or altered? Do you know the consequences if the staples on your original Will are removed, even if it was just to make a copy? What happens to your Will if it is kept in a safe deposit box? The answers may be surprising.

In New York State, if a Testator (the maker of a Will) holds on to their original Will and the Will cannot be located after their death, the Will is deemed revoked, even if copies are located or held by the attorney who drafted the Will. This legal presumption of revocation can be rebutted, but it would take strong evidence to show that the Will was not revoked. This can result in unintended consequences, including the Testator’s estate going to people who were not intended to inherit money

In the case of The Matter of The Estate of Robyn Lewis, the Testator and decedent, Robyn Lewis, had been married to James Simmons. They executed Wills naming each other as beneficiary. Ms. Lewis also named her husband’s father as the alternate beneficiary. They divorced. Thereafter, it was alleged that Ms. Lewis had executed a new Will revoking the prior Will. However, this new original Will could not be located. Therefore, the old Will was deemed to control as that original was located. There were additional issues involved in this case, but suffice to say that an unintended result occurred because the alleged newer original Will could not be located and was deemed revoked.

Another issue presented occurs when you hold your original Will in a safe deposit box (“box”) at a bank. Even if the box is owned in joint names, once an owner of a safe deposit box dies, it requires a Court Order pursuant to Surrogate’s Court Procedure Act 2003 to have the box opened and the contents inventoried. This results in an added expense to the estate and may result in costly delays.

Also, if the safe deposit box is in your name only, you must make sure that someone, either the nominated executor or someone else, is aware that you own a safe deposit box and that your Will is located in it. Otherwise, if no one locates the box and the Will, the Will could be deemed revoked resulting in unintended consequences.

A further issue that can arise if your original Will is in your possession is if the Will is altered in any way, such as the removal of the staples, a page being ripped or handwriting on the Will. All of these situations can cause additional expenses to the estate in trying to prove that the Will is valid and was not altered or revoked. This can also result in unintended consequences if the Will is not accepted for Probate.

For those compelling reasons, if we prepare your Will, Harms & Harrigan, LLP, offers to hold Wills for safekeeping, so as to alleviate the issues discussed above and help ensure that your desired result is accomplished.

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