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What Happens to Your Original Will

Our practice

Your Will is one of the very few documents in your life where the original matters and a copy will not do. That is not a formality. New York applies a presumption that a Will last known to have been in the testator's possession, and not found after death, was destroyed by the testator with the intention of revoking it. A family holding only a photocopy has to overcome that presumption in a separate court proceeding, with witnesses, before anything else can happen.

So the question of where the original lives is a real one, and it deserves a decision rather than a drawer.

We return executed originals to you when your documents are complete. You receive the signed originals, a complete set of copies, and written guidance on where to keep them and who should be told.

We do not hold clients' original documents for safekeeping. Holding originals sounds like a service and behaves like a risk: files move, firms close, and the one moment the document is needed is the one moment nobody can reach the person who has it.

Where an original Will can be kept

At home, properly. This is what most people do and it is perfectly sound if it is done deliberately. A fireproof document box at home works. So does a folder in a filing cabinet, provided two things are true: the executor knows it exists, and the executor knows where it is. Do not staple anything to it, do not unstaple it, do not write on it, and do not remove the fastening — marks and missing staples on an original Will invite exactly the kind of questions you drafted it to avoid.

With the Surrogate's Court. New York's Surrogate's Courts will accept an original Will for safekeeping during the testator's lifetime, for a small filing fee. It is stored sealed, it is not public, and it can be withdrawn by the testator. When the testator dies, the court has it. For clients who have nobody they would rather trust with it, this is often the best answer available, and it is the one option that does not depend on any private party still being there in twenty years.

In a safe deposit box — with care. A box in the testator's sole name can be sealed on death and opening it may require a court order, which is precisely the wrong outcome at precisely the wrong moment. If a box is used, it should not be the only place the family can look, and someone else should have lawful access.

Not with the beneficiary who does best out of it. This is not a legal rule, but it is what Surrogate's Court practice teaches: custody by the person who inherits the most is the single most common origin of a Will contest.

Tell somebody

The most common problem is not a lost Will. It is a Will nobody knew to look for. Tell your executor that you have made a Will, tell them where the original is, and tell them who prepared it. Write it down somewhere your family will find. You do not have to tell anybody what is in it.

If the original cannot be found

It is not the end. New York allows a lost or destroyed Will to be proved, but the requirements are strict and cumulative, and the presumption of revocation described above has to be dealt with first. We explain how that proceeding works, in full, on our page on lost and destroyed Wills.