Ryan E. Melsky, Esq.

Gagliardi & Melsky, LLC

Clients who have just signed their ‘Last Will and Testament’ often ask if they should leave the original Will at my law firm. The answer to this question is “no.” Any time you execute a ‘Last Will and Testament,’ you should keep the original in a secure location that is accessible to you and, when you die, it should be accessible to your Executor.

The confusion surrounding where to store original ‘Last Will and Testaments’ stems from the fact that, traditionally, many attorneys did, in fact, retain the original ‘Last Will and Testaments’ of their clients. There were several problems with this arrangement, however.

First, copies of Wills can pile up quickly, thereby creating problems with storage and cataloguing as time wears on. Most law firms would have to add another floor to their office just to store ten, twenty, or in some cases thirty or more years of original Wills.

More relevant, however, is that lawyers move, retire, and—like their clients—they die. What becomes of thirty plus years of original Wills when a law firm closes its doors for good?

Now consider that the Surrogate’s Court is not allowed to admit a copy of a Will to probate. Thus, if you leave your original Will with your attorney, and if your attorney’s firm closes, your Executor will have to petition the Superior Court to get a copy of your Will admitted to probate. This is more costly and time-consuming than starting out at the Surrogate’s Court.

Therefore, your original Will should be retained, protected, and accessible when needed. Unfortunately, safe deposit boxes do not serve this purpose very well; safe deposit keys have to be located and matched up to specific locations. And banks are justifiably highly reluctant to allow anyone into someone else’s safe deposit box.

As to being accessible, the stories that we sometimes hear about the person who discovers the ‘Last Will and Testament’ of a wealthy eccentric hidden in a painting or attached to the underside of a desk serve to illustrate this point. In these cases, the original Will was worthless. It did not come to anyone’s attention until long after the estate had been probated. And by then, it was too late to serve any purpose.

The best approach is to purchase a fire-proof box and place all of your important documents in it (e.g., the deed to your home, birth certificates, passports, original Will, etc.). Take the key to this fire-proof box and place it on your keychain or some other accessible location. Then let your Executor know where your original ‘Last Will and Testament’ is located so that they can access it when the time comes.

Upon hearing this information, clients often ask if they can “register” their ‘Last Will and Testament,’ thinking that this will alleviate the burden of keeping an original Will. Although New Jersey does have a Will Registry, the registry is only for information, not the Will itself. The Registry does not retain the original Will of the registrants. Therefore, the best approach is to follow the guidance set forth above.