I once worked with a Brooklyn family whose mother had passed away. Her children found a clear, photocopied will in her desk drawer, but the original—the one with the wet ink signatures—was nowhere to be found. They assumed presenting the copy to the Surrogate’s Court would be a simple matter. They were wrong. The absence of the original created a legal presumption that their mother had revoked her will—launching them into a costly and stressful “lost will” proceeding that delayed their inheritance by more than a year.
A will is more than a set of instructions. It is a physical document with immense legal power. A copy is just evidence. The original is the instrument itself. Where you keep that instrument is one of the most critical—and frequently mishandled—aspects of estate planning.
Why Common “Safe” Places Aren’t Safe at All
Many people believe they are acting prudently by placing their original will in one of two locations: a home safe or a bank’s safe deposit box. In my experience, both of these choices create significant—and expensive—problems for the family you intend to protect.
A safe deposit box presents a classic catch-22. After your death, the bank will seal the box and will not grant access to anyone, including the person you named as executor, without an order from the Surrogate’s Court. To get that court order, however, the executor needs the original will—the very document locked inside the box. This forces your executor to commence a special proceeding just to get permission to open the box, inspect its contents for a will, and then begin the actual probate process. It’s a frustrating, time-consuming, and entirely avoidable delay.
Keeping the will at home seems simpler, but it carries its own set of risks. A home is vulnerable to fire, flood, or theft. More troublingly, a will kept at home can be misplaced during a move or a renovation. It can also be found—and intentionally destroyed—by a disgruntled family member who is unhappy with its contents. Stewardship of your legacy begins with the physical stewardship of the document that defines it.
The Surrogate’s Court and the Missing Original
The situation the Brooklyn family faced is governed by a strict rule in New York law. When an original will was last known to be in the possession of the person who made it (the testator) and it cannot be found after their death, the court presumes the testator destroyed it with the intent to revoke it. This is not a minor hurdle. It is a significant legal presumption the will’s proponent must overcome.
To probate a copy of a lost or destroyed will, your executor must satisfy the demanding requirements of Surrogate’s Court Procedure Act (SCPA) § 1407. They must prove to the court that:
- The will was not revoked by the testator.
- The will was properly executed according to all legal formalities.
- All of the provisions of the will can be clearly and distinctly proven by at least two credible witnesses or by a copy or draft of the will proven to be true and complete.
This is a high bar. A lost will proceeding involves witness testimony, additional legal fees, and the very real possibility that the court will reject the copy and declare that you died intestate—without a will. If that happens, your assets will be distributed according to state statute, not your wishes. The very plan you carefully constructed ceases to exist.
A Deliberate Approach to Custody of Your Will
The goal is to ensure your original will is safe, confidential, and immediately accessible to your executor upon your death. There are several prudent ways to achieve this, and at our firm, we have established procedures to handle this critical responsibility.
The most reliable option is to leave the original will in the custody of the law firm that drafted it. An established estate planning firm will store the document in a fireproof vault as a professional courtesy. We don’t just put it in a filing cabinet—we have a formal system for logging, storing, and retrieving these vital documents. This arrangement designates a neutral, professional third party as the custodian, removing any possibility of the will being lost at home or locked away in a bank box. When the time comes, your executor contacts our firm, and we begin the process of filing the original will with the appropriate Surrogate’s Court.
Another option is to file the will for safekeeping with the Surrogate’s Court in your county during your lifetime, as permitted by SCPA § 2507. While not a common practice, it provides a high degree of security, though it may be less flexible if you decide to update your will later. The key is to be intentional. The storage of your will should not be an afterthought; it should be a deliberate part of your plan.
The simple act of deciding where your will is kept can be the difference between a smooth transition for your family and a protracted court battle. If you are unsure where your original will is, or if it is currently stored in a safe deposit box, your first priority should be to locate it. Once it’s in hand, the next step is establishing a proper safekeeping plan as part of a complete review of your estate documents.
