Detailed Answer — How New York law treats a lost or destroyed will

When a will cannot be located after the testator’s death, New York law focuses on two central questions:

1. Was the will properly executed (valid when made)?
2. Was the will revoked by the testator before death?

If the original will is missing, Surrogate’s Court may still admit the will to probate, but the person asking the court to admit the will (the petitioner) must prove by clear and convincing evidence that the will was validly executed and that the testator did not revoke it. See the Estates, Powers & Trusts Law (EPTL) provisions governing wills and revocation for general statutory context: EPTL, Article 3 (Wills and Codicils).

Common scenarios and how the court treats them

• Will lost after testator’s death: If the will was in someone else’s possession (for example, an attorney or a bank) and is later lost, the petitioner can attempt to prove the will’s contents and that the testator did not revoke it. The court may admit a copy or allow proof of the will’s terms through witness testimony, records, or other reliable evidence.
• Will destroyed before death by the testator (with intent to revoke): If the testator burned, tore, or otherwise destroyed the will intending to revoke it, that act generally revokes the will. Under New York law, a will can be revoked by a physical act showing the testator’s intent to revoke. The court examines direct evidence (e.g., admission by the testator, testimony) to determine intent. See EPTL provisions on revocation at EPTL Article 3.
• Will destroyed after death by another person: If someone destroys the will after the testator’s death (for example, an executor or heir), that destruction does not automatically revoke it. In that case, the court will consider evidence that the will existed and what it contained and may admit a copy or other proof to effectuate the testator’s intent.
• No admissible proof of will or revocation: If the petitioner cannot prove the will’s terms and that it was not revoked, the estate may be distributed as if the decedent died intestate (under intestacy rules). Intestacy can yield a very different result than the decedent’s intent.

How the Surrogate’s Court typically proves a lost will

To probate a lost or destroyed will, the petitioner usually files a petition in Surrogate’s Court and presents evidence such as:

• A certified copy or photocopy of the will (if one exists) or a signed draft from the attorney’s file.
• Testimony from attesting witnesses who can confirm the will’s execution and contents.
• An affidavit from a custodian (e.g., the drafting attorney) describing the will’s last known location and how it came to be missing.
• Contemporaneous records or correspondence showing the will’s terms (emails, drafts, notes, or a filed copy held by a secured service).
• Evidence refuting any claim that the testator revoked the will (no subsequent will, no physical-act evidence of revocation, or testimony that the testator expressly refused to revoke).

Because New York generally requires attesting witnesses’ testimony to prove execution, a self-proved will (one accompanied by a self-proving affidavit executed before a notary) can simplify matters when witnesses are unavailable. However, a missing original still requires evidence the testator did not revoke the instrument before death. For practical guidance on filing and probate procedures, the New York courts provide resources: NY Courts — Probate & Administration.

Burden and standard of proof

The petitioner bears the burden of proof. Courts typically require clear and convincing evidence to admit a lost or destroyed will. The exact showing varies by county and judge, and the strength of documentary evidence (attorney file copies, drafts, or contemporaneous records) and witness testimony often determines success.

Possible outcomes

• Petition granted: court admits copy or probate in solemn form based on proof, and estate distributes according to the will.
• Petition denied: insufficient proof — estate is administered under intestacy rules, or a later valid will is located and offered.
• Partial relief: court may resolve contested issues (for example, admit parts of a will that are proven and treat other parts as void).

Surrogate’s Court judges have discretion on admissibility and the weight of the evidence. Records from the drafting attorney or bank safe-deposit box, and testimony from the witnesses who saw the testator sign, are often decisive.

Helpful Hints — Practical steps if you think a will is lost or destroyed in New York

• Search thoroughly before filing: check with the decedent’s attorney, bank safe-deposit boxes, digital storage, and any files or personal papers.
• Collect copies and drafts: obtain copies, drafts, or emailed versions from the drafting attorney or cloud storage — these are crucial evidence.
• Locate witnesses: identify and get statements from attesting witnesses, the drafting attorney, or anyone who saw the decedent sign the will.
• Document chain of custody: if someone else had the will last, get a written account of when and how it went missing.
• Act quickly: statutes of limitations and administration timelines vary; prompt action preserves evidence and witness memory.
• File in the correct court: probate proceedings for New York estates are handled in the Surrogate’s Court in the county where the decedent lived. See general probate guidance here: NY Courts — Probate & Administration.
• Expect contested issues: heirs with conflicting interests may contest a lost-will petition; be prepared for litigation and the need for strong evidence.
• Consult an attorney: an attorney experienced in Surrogate’s Court practice can assemble evidence, prepare affidavits, and present the petition properly.

If you are the executor named in the copy: do not distribute assets until the court acts. Acting prematurely can create personal liability if the court later finds the will invalid.