Filing a Will With the Court for Safekeeping

Questions sometimes arise about where to keep a Will, and who to tell about a Will. 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 and its terms carried out. 

Unfortunately, sometimes it's not 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.  

In those situations I always look at whether anyone with access to the will would benefit from its disappearance. I recently had a client whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He has the nephew in the will for about $50,000, has some other cash bequests, and leaves the rest (about $400,000) to his best friend, and if his best friend dies first, to his friend's family.  I know this client long enough and well enough to know this is all legit, but he is very concerned that his nephew would be called to his residence if he died, and 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 like that)  My client is uncomfortable keeping the Will in a safe deposit box, and uncomfortable about leaving 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.  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.

Filing a Will for Safekeeping

Questions sometimes arise about where to keep an original Will, and who to tell about a Will. 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 and its terms carried out.   In reality, things are not always that way.

Sometimes a person making a will has good reason to make the will but keep it a secret until after they pass.  Sometimes they even resort to deception and skullduggery to make their will but keep it a secret.  Often times they have to do this to prevent the skullduggery of others.  

I always look at whether anyone with access to the will would benefit from its disappearance. I recently  had a client whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He put the nephew in the will for about $50,000, made some other cash bequests, and left the rest (about $400,000) to his best friend.  If his best friend dies first, then it would go to to his friend's family, who he likes much more than his nephew.  I know him long enough and well enough to know it's all legit, but he is very concerned that his nephew would be called to his residence if he died, and that the will would "disappear".   He also is uncomfortable keeping it in a safe deposit box, and uncomfortable about leaving it with me. 

I suggested that we file it for safekeeping with Surrogates Court, while he is still living. Many people, and many lawyers, don't know you can do this, but you CAN.  This can be very useful.  It costs $40 to file. Whenever anyone files an Administration proceeding (claiming there is no will), the Clerks ALWAYS check for wills on file. Sometimes it's a real surprise for the bad guys when they find out a Will is on file.  I have filed wills for safekeeping about 15 times in the last 30 years.   One time my client left a "fake" will in his house on purpose, and filed the real (later) one with the Court.  Whenever I have filed a Will for safekeeping, I always knew it was the right move, and the clients not only appreciated the advice, they were greatly relieved.