Your last will and testament is a set of instructions that explains how your estate should be redistributed when you die. Wills are relatively simple instruments, but they can be used to accomplish a great deal, from keeping your estate out of probate to ensuring that your child will have a trusted, loving guardian should anything ever happen to you.
Writing a last will and testament is often a first step in the estate planning process, but it shouldn’t be the last. Even if you don’t need a trust or powers of attorney, you still need to make sure that your will stays safe until the time comes for your executor to initiate probate. If your will is lost or misplaced, it could complicate proceedings—and, in a worst-case scenario, result in a New York surrogate’s court deciding which of your relatives deserves an inheritance and, by extension, which don’t.
You don’t have to take unnecessary chances with your legacy. Here, the Brooklyn estate planning lawyers at Landskind & Ricaforte Law Group, P.C. discuss the best way to keep your last will and testament safe.
The 3 Big Risks of Losing a Will
The requirements for writing a will aren’t complicated: as a general rule, you simply need to be an adult who is “of sound mind” and either a resident of New York state or the owner of property in New York state. However, while it may not be difficult to meet the state’s legal criteria for executing a last will and testament, your executor will, eventually, be expected to present it to a surrogate’s court for validation.
If your executor can’t find an original, signed copy of your will, there could be certain consequences, including the following:
Your Preferences Could Be Lost
If your executor can’t find your will, a trust, or any remaining estate planning documents, they have no way of knowing how you wanted to distribute your assets among friends and family. In some cases, your executor could be legally required to block inheritances to heirs who aren’t your immediate relatives. This can happen even if everybody knows you meant to set aside money for a family friend or preferred charity.
Your Estate Could Be Tossed Into Intestacy
If you die without a valid will or funded trust, you will be said to have died “intestate.” If you die intestate, without any valid record of your final wishes, the court will have to make these decisions on your behalf.
In general, intestacy privileges first-degree relatives, such as your:
- Surviving parent or parents
- Surviving siblings
- Surviving children
If you don’t have any first-degree relatives, the court will expand its search to include cousins, grandchildren, and other relations. It won’t matter if you’ve spent your entire life estranged from a parent or sibling—the court will have its hands tied, and the judge will have no choice but to follow the rules of intestacy.
Elements of Your Estate Plan Could Be Nullified
A lost will could impact any other part of your estate plan that needs a valid will and testament to work. Testamentary trusts, for instance, are trusts that are established through a last will and testament. Most of the time, testamentary trusts are configured to provide a convenient, low-cost alternative to probate. Without a will, your testamentary trust will almost certainly fall flat, returning your assets to probate and, potentially, thrusting your family into unexpected intestacy proceedings.
The Safest Options for Protecting Your Estate Plan
Since your will only works when your executor knows where to find it, you should always prioritize keeping your will in a safe and secure place. Here’s what you should do if:
You Want to Keep Your Original Will at Home
Keeping a last will and testament at home is, by far, the simplest and least expensive method of preserving it. It is also a somewhat risky option: if nobody knows where to look, it could take days, weeks, or months for your executor to initiate probate. Furthermore, there’s always a chance—however slight—that your will could be stolen, lost in a fire, or damaged by water.
Estate planning lawyers don’t usually recommend keeping your original will at home, but if you do, you should keep it safe and secure in a fire-resistant safe.
You Want to Keep Your Will in a Safe Deposit Box
You can also keep a copy of your will in a safe deposit box.
Leaving your will in a safe deposit box is much safer than keeping it at home, but it can have disadvantages. For example, your executor may have to spend significant time convincing the bank that they have a legal right to access your safe deposit box.
You Feel Comfortable Leaving Your Will With the Surrogate’s Court
New York’s surrogate courts, which enforce the state’s probate code, allow residents to store their wills in a courthouse vault. Upon your death, your executor can go to the courthouse, request access, and initiate probate—a process that wouldn’t take quite as long when the will is in the same place it needs to be filed.
The downside to filing your will at court is that it’s more difficult to make changes to it before you die.
You’d Prefer an Experienced Estate Planning Lawyer Protect Your Legacy
You aren’t required by law to store your will in any one way, but many estate planning attorneys will say the safest option is in their office. And this isn’t just because your lawyer likes having you as a client—it’s because they work with estate planning documents almost every day, and they know how to keep them safe.
If your will is with your lawyer, you won’t have to worry about tracking it down, and you won’t have to make an extra stop if, at some later point, you decide you want to disinherit an heir, strike out a divorced spouse, or add a new beneficiary.