Questions sometimes arise about where to keep a Will, and who to tell about it. In a perfect world, where families are close and people communicate openly, this would not be an issue.  The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowledge that when the time comes, the will will be found, the Executor will probate the Will, and its terms will be carried out.

Unfortunately, things don’t always work that way.  Sometimes clients have to resort to deception and skulduggery just to make their will, and they want to keep it a secret.  Sometimes they are comfortable having people know they made a Will, but they don’t want the location of the Will to be known.  When I draft Wills for clients in this situation, I want to respect their wishes and help them achieve their objective.

I always alert Will drafting clients about the importance of deciding where the Will should be kept.  In these situations I look at whether anyone with access to the will would benefit from its disappearance. I recently had an elderly client whose closest living relative is a nephew.  He didn’t care much for the nephew, who would stand to inherit 100% if there were no Will.   He put the nephew in the will for $50,000, made some other cash bequests, and left the rest (about $400,000) to his best friend, with a provision that if his best friend died first, this share was to go to his best friend’s family.  I knew this client long enough and well enough to know this was all legit, but he is very concerned that his nephew would be called to his residence if he died, and then the Will would not be secure.  (As an aside, in my view a person would have to be conscience-less to destroy a Will, but sadly there are a lot of folks who’d do that)  My client is uncomfortable keeping the Will in a safe deposit box, and did not want to leave it with me.  I suggested that we file the Will for safekeeping with Surrogates Court, while he is still living.

Many people, including lawyers, don’t know you can do this.  You CAN, and it can be very useful.  In New York, it costs $45 to file.  The benefit of this is clear:  A person who doesn’t like the Will can’t get at it.  Furthermore, if the person dies and the bad person tries to file an Administration proceeding as if there were no Will (which is what they always do), the Surrogates Court clerks ALWAYS checks for wills on file.  This stops the bad guys in their tracks.  I have filed wills for safekeeping quite a few times in the last 30 years.  I know of a few instances where it prevented mischief.  Just as important though, is that the clients always felt better having done it, and they always appreciated the advice.

  • Barry Seidel

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