Preparing your Last Will and Testament is one of the most mature and responsible actions you can take to protect your children and the people dear to your heart.  You have worked so hard throughout your life to gather the assets you currently have.  So why have your valuables end up in undeserving hands? You may be wondering what purpose does a will serve.  For starters, your will can provide for a guardian for your minor children or adult children who have special needs.  Most importantly, your will serves the purpose of providing for the distribution of your hard earned assets in the manner that you see fit.  If you took the opportunity to prepare a will, the State of New York has no say in the distribution of your real and personal property.  Now that we have convinced you to prepare a will, the next important aspect of estate planning is choosing a safe place to safeguard this important document.

Most people do not realize how important it is for your executor to find your will upon your passing.  As most states, the Surrogate’s Court in New York State, only allows for a copy of your will in very limited circumstances.  Almost always, the original will is required in order to probate your estate.  What happens if your executor cannot find your will upon your demise, or can only provide the court with a copy? What occurs is that your estate is administered as if you never had a will.  The property is divided among any surviving spouse and the children of the deceased.  If you were single at the time of death, then your children will share equally in your estate.  If a child has predeceased you, and they had children of their own, that child will share in the estate with the rest of the remaining biological or adopted children.   

Whether you live in the New York area or in any part of the country, it is important to keep your will in a place that is both secure and accessible.  A hiding place that is inaccessible to the named executor in your will can quickly get problematic.  If the document is difficult to access, it is not uncommon for family members to start incurring significant expenses in an effort to gain access to the instrument.  The following are some of the places you should avoid when deciding where to place your will:

Where Not to Keep Your Will

When it comes to safely storing your will, there are a number of places where it is less suitable for a number of reasons.

Desk or File Cabinet: Many people mistakenly keep their legal papers in a desk drawer at home for tax and other purposes.  The will is not a type of document that needs to be filed with authorities during one’s life, or readily accessible by you.  The only few times that your will is required is if you have passed away or you need to amend the document.  The issue with storing the will along with your other papers at home in the desk or file cabinet, is that it is vulnerable to fire, flood, or other disasters that can destroy your home.  While the actual odds of your home succumbing to such an occurrence may seem unlikely, the fact that it can happen is a good enough reason to make your desk, file cabinet, or similar place unsuitable for your will.  To illustrate our point, when Hurricane Sandy hit New York City, many people and attorneys alike lost their will and the wills of their clients in the flood.  

Safe Deposit Box: Most people make the mistake of keeping their will in their safety deposit box located in a bank.  Sure, it sounds like the appropriate place, free from any interference.  But that is exactly the problem; no one can get to your will except you.  How will your executor gain access to your document when the time comes to file it for probate with the court? Your family will have to file a petition with the Surrogate’s Court asking for permission to access your safe deposit box.  A court order takes time and money while adding an unnecessary level of complexity to the matter.  You want to make the handling of your estate as simple as possible for your dear ones.  You do not want your children to pay court fees and attorney fees just to access your will.

Places to Keep Your Will Safe

It is recommended that for practical purposes that your will be kept in a location that offers the best protection possible, yet is very accessible when the probate of your estate occurs.

Lawyer’s Office:

Asking that your lawyer keep your original will in their office is a good decision.  Estate lawyers typically have safes in their office specifically for storing the wills of their clients.  There are several advantages of keeping your will in a lawyer’s office:

• The will is safe from the reach of any disgruntled heirs
• Most NYC lawyers will not charge anything to keep a will they drafted: it’s a free service
• If it is ever destroyed, lost or stolen, the lawyer can submit an affidavit to the court attesting to the fact.
• The lawyer who can easily pass the will to the executor.

Since the New York Surrogate’s Court demands that the original will be produced in probate proceedings, it is advisable to keep the will with the lawyer as the chances of something happening to it are quite small.  Also, another important key point to take note of is that if the original cannot be found after it was left with the lawyer, a copy of the will, accompanied with the lawyer’s sworn testimony, will suffice.

A Safe in Your Home

If you have a waterproof and fireproof safe in your home, then this is an excellent place to keep your will as well as your other important documents. While this is an ideal place to keep your will, keep in mind that you will need to share the code or key with someone you can trust, preferably the executor, so that when it is time they can access the instrument.  This is a very important task that often gets overlooked.  No access to the safe, means no access to the will.  To touch on the topic again, in order to probate the will, the court will demand that the original be produced.  This is especially true in New York, where estate laws are particularly strict.

Surrogate Court

This is one of the best options of where to keep your will.  For a very small one-time fee, the Surrogate’s Court will store the original will for you.  This means is that no one can get away with claiming that you died without a will, because the original is filed with the court.  There is no safer place to store your will.  

The one minor drawback with storing the document with the court is that if you need to make changes, you will be charged an additional filing fee for the new will.  Keep this in mind if you anticipate making several changes to your will in the foreseeable future, such as an upcoming marriage or divorce, and the accounting of new additions to your family.

In conclusion, keep your original will safe! You have taken the time and spent money on having the document drafted.  Now take some measures to guard it.  Be sure to discuss all possible options and places with your lawyer.