person that passed away had a will. what can i do if this will cannot be found?
Estate Planning Attorney
You can start a probate proceeding if you are a creditor or interested family member without a will.
If the will shows up during the proceeding-it still caan be filed.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Divorce / Separation Lawyer
In NY if you do not have a will, the file an administration proceeding.
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Depending on your relationship to the person involved, you may or may not have any right to initiate probate, absent a Will. Since you are certain that there WAS a Will, you would need to keep digging, in the case that you are not an heir that would otherwise take.
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Elder Law Attorney
Do you have a copy? There is a procedure in NY by which a copy might be
admitted to probate as a valid will. Also, contact the attorney who drafted
the will. He or she might have the original or a conformed copy. You likely
will need to retain an attorney for this.
Joseph A. Bollhofer, Esq.
Joseph A. Bollhofer, P.C.
291 Lake Ave.
St. James, NY 11780
Member, National Academy of Elder Law Attorneys (NAELA)
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My colleagues all give you good advice. There is just a point or two that I want to add. First, you say that the decedent "had a will." The fact that someone once had a will does not mean that the will existed at the time of that person's death. Most people don't realize that the "formal" ceremony to revoke a will is no more complicated than ripping it up and throwing it away.
Beyond that, it's time to start rounding up the "usual suspects" as to where that will might be (assuming it was not revoked). A good starting point is to ask the decedent's attorney, if you know who that was. You might also check to see if it was filed with the Surrogate's Court in the county in which the decedent lived at the time of his or her death. Although it is unusual to file a will before the person's death, it is sometimes done and, quite frankly, it's not a bad idea because that way the will cannot be lost.
Although a safe deposit box is not a good place to keep a will, some people insist on doing so. So you might at least check as to whether the decedent had a safe deposit box.
Now, if the original will cannot be found, as one of my colleagues noted, it is sometimes possible to probate a photocopy of the will. But that is a difficult proceeding in most cases, because one has to offer a cogent explanation as to what happened to the original of a "lost or destroyed" will.
If the will does not turn up after a diligent and reasonable search for it, there likely would not be any alternative to filing a proceeding for administration of the estate. Administration is the terminology used when a person dies without a will. In such an instance, the estate is distributed in accordance with New York's laws of intestate distribution.
Good luck to you.
Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.