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How important is it to have an ORIGINAL Will?

Very important, as highlighted by a recent decision by the Appellate Division of the New Jersey Superior Court.  When a person dies, his or her Will must be probated – that is, proven to be a valid legal document.  In many states, the probate process is cumbersome, time-consuming and expensive.  Assuming you have an original Will, New Jersey is not one of those states.

Probate in New Jersey is extremely simple and inexpensive and in many cases can be done without the assistance of a lawyer.  It is handled by clerks at County Surrogate offices who are by and large extremely helpful and approachable.  But that assumes you have the original Will.  Without it, probate is not so simple.

A County Surrogate can probate only an original Will.  The Surrogate cannot probate a copy of a Will unless there is a court order telling the Surrogate to do so.  In a recent case, In the Matter of The Estate of Harold Becker, deceased, the decedent had executed a Will leaving all of his assets to only one of his three sons, Brandon, ostensibly because he felt that he needed it more than the other two.  He then mailed the original Will to Brandon, who was incarcerated at the time.

The decedent subsequently died and Brandon could not produce the original Will.  Brandon’s mother, the decedent’s ex-wife, who was named Executor of the Will, was therefore not able to probate the Will through the County Surrogate.  Instead, she had to bring an action in Superior Court to admit a photocopy of the Will to probate.

The law provides that if it can be shown that an original Will was in the decedent’s possession but cannot be found after his or her death, it is presumed the Will was revoked.  If the original Will is shown to be out of the decedent’s possession, the person or persons objecting to probate must show that it came again into the decedent’s possession or it was actually destroyed at his or her direction.

The court admitted the Will to probate over the objections of Brandon’s half-brothers.  One of the critical facts leading to that decision was that because the decedent had surrendered possession of the original Will to Brandon, the presumption of revocation did not apply.  Brandon’s half-brothers could not produce any evidence that the decedent either had access to the Will or directed that it be destroyed.  The Appellate Division affirmed the Superior Court’s decision.

The take-away from this case is the importance of safeguarding the original Will and ensuring that survivors, particularly the named Executor, know where it is and how to access it.  With it, probate is simple and inexpensive.  Without it, as the Becker case reveals, it is not.

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