In our previous post, we began looking at what to do when a testator’s will has been lost or misplaced. As we noted, the steps to be taken depend on whether the testator has died or still alive. In this post, we’ll look at what to do if the testator is deceased and the original will is missing, but copies of the original remain.
If the testator is deceased, but a copy or copies of the will have been left behind, one must seek to prove that the contents of the copy accurately reflect the testator’s desires as expressed in the original will.
Under New Jersey law, a Surrogate court may not probate a copy of a will, but must receive a verified complaint with an order to show cause. In the complaint, it must clearly be stated why the copy is authentic and why it should be accepted for probate. The complaint must also be submitted in good faith as to the authenticity of the original will. All court papers are to be filed with the Surrogate in the county in which the deceased testator died.
The order to show cause gives notice to any interested parties about the hearing date for requesting probate of the will. The hearing date will be set by the court, and copies of the complaint and the finalized order to show cause will be provided to interested parties. Interested parties wishing to be heard by the court concerning the complaint need to file a written answer to the complaint as it appears in the order to show cause. Interested parties who are minors, incapacitated will need to be represented by a guardian ad litem or an appointed attorney.
One important thing to keep in mind with Surrogate courts is that they cannot provide legal advice, but can provide information as to the legal process. Surrogate offices also usually have legal forms available on their website.
Probably the best take-away from this discussion on lost wills is that, once a will accurately reflecting one’s desires has been properly executed, one should take all possible precautions to store it securely. This can be done by filing it with the probate court in the jurisdiction where one lives, by keeping it in a bank safe deposit box, giving it to one’s personal attorney, or putting it in a fireproof container or another safe spot in one’s home. If the original will is ever modified, it should be properly stored after those changes have been properly made.
Source: nj.com, “Your Legal Corner: What to do if an original will is not available,” Victoria M. Dalton, 10 April 2011.