Q: I’ve already executed a Will and other estate planning documents, but after my basement flooded, the documents were ruined! Will my executor be able to handle my affairs after I pass with only a copy of my Will?
A: After going through the effort of carefully preparing your estate documents, it can be disheartening to find your original paperwork damaged or destroyed – and in a world that increasingly shifts towards “paperless,” you may assume that a scanned copy or a photocopy will hold just as much weight as the original document. But when it comes to your Last Will and Testament, absent special circumstances, only the original signed papers give your executor authority to act on behalf of your estate.
In New York state, if your executor cannot find your original will, it is presumed that you intentionally destroyed the document when you were alive. Even if a copy exists, the court will assume that the instructions listed no longer reflect your wishes. Your named executor has the burden of proving that the will was not destroyed with intent to revoke it. Without a sworn statement explaining the loss, or some form of testimony regarding the will, this can be a difficult hurdle to clear with the court.
If your executor is not able to meet this standard, the court will not be able to acknowledge the copy of the will. For purposes of your estate plan, the court would then default to the law under intestacy – in other words, your assets would pass as though you died without a will. Since the default heirs under intestacy may be different than the beneficiaries you name in your Last Will and Testament, it is critical to preserve your original documents to the best of your ability.
Even if your executor can meet the standard, courts look at photocopies of wills with a scrupulous eye. A proceeding to acknowledge a copy of a will is often subject to a strict level of review, even when the executor retains an experienced estate attorney. As a result, these proceedings often take significant time, which may delay distributions of your assets to your beneficiaries.
Accidents happen, and it isn’t always possible to restore original documents, even if they’re kept in a secure location in your home. If your documents are damaged or missing, you should consult with your estate planning attorney right away to discuss re-executing thedocuments. You should also discuss any plans for maintaining documents with your executor, to ensure that they can act quickly and proactively.
By Britt Burner, Esq. and Frank Oswald, Esq.