First, search everywhere the original could reasonably be — the drafting attorney's office, a safe deposit box, the Surrogate's Court where your loved one lived, and their home files. New York courts strongly prefer the original document. If it truly cannot be found, the copy is not worthless: New York allows a lost or destroyed will to be admitted to probate under SCPA 1407, but you must overcome a legal presumption that the missing will was revoked.
Where To Look Before You Do Anything Else
Most missing wills are not lost — they are just somewhere unexpected. Before treating this as a legal problem, treat it as a search problem:
- The attorney who drafted it. Many law firms keep original wills in their vaults. Check the copy for the firm's name and call, even if the lawyer has retired or the firm has merged.
- The Surrogate's Court. New York allows people to file their wills with the Surrogate's Court for safekeeping during their lifetime. Ask the court in the county where your loved one lived.
- A safe deposit box. If the box is in the decedent's sole name, the bank will restrict access, but the court can authorize opening the box to search for a will.
- Home records — desks, fireproof boxes, filing cabinets, and folders kept with deeds and insurance papers.
- Family, close friends, financial advisors, and any prior attorneys.
Document your search as you go. If you end up in court, proof of a diligent search matters.
The Legal Hurdle: New York Presumes A Missing Will Was Revoked
Here is the rule that makes these cases hard. If the original will was last known to be in your loved one's own possession and cannot be found after death, New York law presumes they destroyed it on purpose — that is, revoked it. The thinking is simple: people who keep their own wills can tear them up, and a missing will may be missing by choice.
The presumption can be overcome, but it takes evidence. Courts listen to proof such as:
- The will was last held by someone else — the drafting attorney, for example — and was lost in their custody.
- A fire, flood, move, or period of chaos explains the disappearance.
- The decedent spoke about the will as still in force close to death.
- Someone who would benefit from the will disappearing had access to the papers.
The stronger and more specific your explanation for the disappearance, the better your odds. Vague speculation rarely persuades a Surrogate.
How A Lost Will Proceeding Works
To admit a copy, New York's SCPA 1407 requires you to prove three things: the will was not revoked, it was properly signed and witnessed in the manner New York requires, and its contents are accurately established — typically through a copy or draft proved to be true and complete, or through witness testimony.
In practice, the strongest cases lean on the drafting attorney's file and testimony, the attesting witnesses, and a clean photocopy or a copy retained in the lawyer's records. The court will also require notice to everyone whose inheritance would change if the copy is admitted, and those people can object.
If the proceeding fails, the estate is usually distributed as if there were no will at all, under New York's intestacy statute — which may produce a very different result than the copy. That gap is often what the fight is really about, and it is worth understanding before you file. Move promptly either way: an estate with no one authorized to act stalls quickly — bills go unpaid and property sits exposed — so the search and the legal analysis should start now, not later.
Key Takeaways
- Search first: the drafting attorney, the Surrogate's Court's safekeeping files, safe deposit boxes, and home records.
- A will last kept by the decedent that cannot be found is presumed revoked under New York law.
- SCPA 1407 lets a copy be probated if you prove due execution, non-revocation, and the will's contents.
- The drafting attorney's file and the attesting witnesses are usually the key evidence.
- If the copy is not admitted, the estate passes under intestacy — often to different people.
This article is attorney advertising and provides general information about New York law; it is not legal advice for your specific situation and does not create an attorney-client relationship. For advice about your circumstances, speak with a licensed New York attorney.