Do you know where your ORIGINAL Last Will and Testament is? If you had an attorney work on it, it will probably be in a large, 3-ring leather binder, but it could also just be a few pieces of paper stapled together. If you need to search for a loved one’s will, you may want to check in their safe, filing cabinet or safe deposit box at their bank.
Having custody of an original signed will is important because it’s quite difficult to probate a photocopy of a will. Probate courts generally insist on having the signed original will and won’t accept or admit copies without holding court proceedings to establish the copy as a true reproduction of the original. The court may accept a copy or a lawyer’s draft or computer file if the original will was stored in a bank vault that was destroyed in a fire or flood, but in most cases, they will assume the will-maker destroyed the original will intentionally if a will cannot be found.
You have several choices on where and how to keep your original will.
- You can hold onto it yourself, keeping it among your important papers, and informing your personal representative where to find it when the time comes.
- You can give the will to someone else to keep, such as your personal representative. This is a great option because the court will not presume that the will-maker intended to destroy or revoke the will if someone else was keeping it and it somehow got lost or destroyed. Most probate courts will accept a photocopy in this case. However, you may not want your personal representative, particularly a family member, to know what’s in the will until after you die, so this could be a reason not to have someone else store the will for you.
- Another option is to keep the original will with the attorney who drafted it. You’ll never have to wonder where your will is or if it is safe, as most attorneys keep clients’ wills in a safe deposit box or fire-proof vault. Attorneys typically will provide their clients with copies of the will, stamped with the location of the original will and their contact information, so upon the death of a client, the client’s relatives or personal representative can readily contact the attorney for the original. In addition, the attorney can assist the family with any probate issues. The majority of our clients ask us to retain the original will for them and their families. They selected us because they liked our professionalism, expertise and knowledge and want to make sure their family members have a smooth transition and probate process after they’re gone. Of course, you can choose to work with your own attorney on probate issues.
- You can file the original will in probate court on your own (with payment of a filing fee) and the court will keep the will indefinitely. The good news here is that it will always be available. However, your will is not considered a public document, so your family or personal representative will have to go to court with your death certificate in order to be able to view your will. In addition, if you were to make any changes or updates to your will, such as disinheriting someone, the court will have the original will and that prior beneficiary may have the legal basis to challenge the new will. For this reason, only a small number of clients choose to keep their wills with the court.
What happens if you can’t find the original will?
If you know your deceased loved one had a will but you can’t find the original, you will need to go to probate court of the county in which your loved one lived and speak to the court clerk, giving the clerk the name and date of death of the deceased person, and ask to see if the will was filed in probate court. If the will was filed, the clerk will allow you to read the will there at the courthouse but you will not be able to take it with you.
What if you move to a new state after your will was created?
Every state has different rules and statutes for wills. For example, in some states, beneficiaries can be witnesses, and in others, they can’t. Some states have different rules on disinheriting a child, and for handling new marriages and divorces. In some states, a divorce revokes a will and in others it just revokes any benefits for the former spouse.
So, for example, what happens if you create a will in New York and now live in Florida? Is your will still valid? In most cases, if you have a valid will in any state, it will be valid in Florida. You would be dealing with some different rules for a will’s interpretation and construction, however. If you have moved and changed your tax domicile (as well as your driver’s license, voter’s registration, doctors/lawyers etc.), you may want to consider drafting a new will in Florida.
Some states recognize different types of wills, such as holographic (signed by the testator) or nuncupative (spoken aloud) wills, yet Florida does not recognize either. Also in Florida, the law requires that your personal representative must be related to you by blood or marriage. If the person is not related to you, the personal representative must live in Florida.
If you lived in New York when you created your will and named your neighbor or best friend as executor of your will, that person would not be recognized as your personal representative in Florida, unless they also moved with you to Florida. If you chose a bank or trust company to act as your personal representative in New York, the bank or trust company must have the legal authority to act as a fiduciary for you in Florida or else your will would not be valid.
Moving to Florida? Call us!
If you are planning a move or have recently moved to Florida, give us a call or schedule a consultation to discuss the probate, trust and estate tax laws here. Elder Law Associates PA is fortunate to have our partner Howard S. Krooks, Esq., CELA, CAP, as an expert in this area. Howie is licensed and has practiced law in both New York and Florida for over 30 years. He is well-versed in all the probate and estate planning rules in both states and can assist you and your family with these matters.
For more information, please contact us today.