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What Happens When a Will is Missing?

Published January 22, 2016

Melissa Mathison, the screenwriter of “E.T.” and ex-wife of Harrison Ford, died from cancer in November, and her will has gone missing, leaving uncertainty over who will inherit her $22 million estate.

Littman Krooks Estate Planning

According to court documents obtained by TMZ, Mathison had written a will, but the original copy could not be located by her business manager. In this case, Mathison’s wishes may still be adhered to, as much of her estate is in a trust fund, and under California law a copy of the will is sufficient, as long as it is not contested. However, the case illustrates the importance of keeping one’s will secure.

Under New York law, it is possible to probate a will even when the original is missing and/or when there is no signed copy to be found. New York’s Surrogate’s Court Procedure Act Sec. 1407 provides that if there is no signed copy of the will, the person petitioning for the will to be probated must provide proof that the will was duly executed, proof of the provisions of the will (either from a copy/draft or from two credible witnesses’ testimony), and a showing that the will was not revoked. The last requirement is the most difficult to prove, because there is a presumption that a missing will last seen in the possession of the testator (the person making the will) was destroyed by the testator.

So while there are procedures to deal with a missing will, it is not a position that anyone should be in. When one executes a will, the estate planning attorney will recommend a procedure to keep the original will secure. In many cases, the attorney will keep the original will in a safety deposit box and give the client a copy of the will and documentation of where the original will is kept.

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