What do you do if you can’t find the Will? Your loved one has passed away, you have pulled yourself through the mourning period, and now you are ready to tackle the estate. You remember that your loved one had a Will — maybe they kept mentioning it, or maybe you knew that they had signed it at their lawyer’s office at some point. You remember that they had told you they were naming you as Executor. You’ve hunted high and low and cannot find that Will. Luckily, the law provides a remedy. Each specific situation is different and this post is not intended as legal advice for any specific factual situation.
Suppose you have a photocopy of the signed Will. The County Surrogate does not admit a photocopy or scan — only an original –– to probate. However there is a procedure to file an action in the Chancery Division of Superior Court to admit a copy of a signed Will to probate. The case is initiated by the filing of a Verified (sworn) Complaint and order to Show Cause. Notice has to be given to everyone named in the alleged “lost Will,” and everyone who would inherit under the laws of intestacy if there is no Will. There needs to be clear and convincing evidence that the deceased person never revoked or destroyed the alleged Will.
If a third party is known to be in possession of the original Will, the law allows a suit to compel production of that original Will.
Suppose you have a copy of a document that has the alleged signing date typed onto it in all relevant places, and it either has the name of the alleged signer typed in or there’s some indication such as “s/” on the signature lines, and maybe even the names and addresses of the witnesses are typed onto the document. This is sometimes called a “conformed copy of the Will.” In some cases when attorneys were holding onto the signed original, they provided this sort of “conformed copy” to the client for his/her personal records. If the lawyer no longer has that Will, then presumably that Will is lost. If the proofs are sufficient and substantial, as described above, it might be an option to file a Complaint to admit the Conformed Copy to probate, again, on notice to all affected parties.
The best practice, of course, is to not only sign a last Will and Testament; to update it periodically as circumstances change; and to make sure the Executor knows where the Will is kept. In difficult situations, the law provides a potential remedy.
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