Estate Planning in a Technologically Advanced World: The Case for Digitally Preserving Paper Wills
11.19.2025
Surely many readers of this article are scratching their heads worrying about what to do with the large cache of aging wills stored in their offices or placed in designated safe deposit boxes. Will storage is an ongoing issue for attorneys for two basic reasons. First, attorneys who regularly retain clients’ original wills are easily overwhelmed by the sheer number of wills entrusted to them. With a large cache of wills comes concern about a lawyer’s responsibility to preserve and protect these documents, particularly as practitioners contemplate leaving the practice and/or their own death. Second, attorneys hired by families of deceased persons to probate a will often cannot easily move forward because the deceased testator’s will can no longer be located.
A solution to both these problems may be found in new legislation allowing attorneys to shred and dispose of original paper wills, provided the attorney first scans the will and then certifies that the scanned copy is as good as the original. The law would further require attorneys to maintain a backup system for the electronically stored documents. With the above considered, the Practice and Ethics Committee of the Trusts and Estates Law Section of the New York State Bar Association would like to promulgate legislation that would accommodate the electronic storage of wills.
The Electronic Wills Act won the approval of the New York State Legislature in its most recent session and as of this writing, is awaiting signature by Gov. Kathy Hochul. This legislation, if approved by the governor, would provide for the execution of electronic wills, representing a significant step toward modernizing estate planning in New York. New York State has not yet addressed the substantial and ongoing burden on attorneys who retain hundreds and sometimes thousands of original paper wills executed prior to the coming new era of electronic wills.
Numerous cases in New York underscore the importance of securely preserving original wills. There are typically three basic options for safekeeping a will. First, the original will can be held by the attorney; second, the will can be held by the client/testator for safekeeping; or third, the will can be deposited with the Surrogate’s Court for a fee of $45.[1] Despite these choices, most often, attorneys maintain their clients’ original wills. Once an attorney takes on the responsibility of storing an original will, the attorney has an ethical duty to safeguard the stored will. Pursuant to Rule 1.15 of the New York Lawyer’s Code of Professional Responsibility, a lawyer must place an original will in “a safe deposit box or other place of safekeeping as soon as practicable,” “maintain complete records” of that property, and return the original will promptly if the client requests.[2]
Despite an attorney’s ethical responsibilities, lost or missing wills remain a pervasive problem. Anyone following the discussions in New York State Bar Association’s communities is familiar with repeated requests regarding the location of missing wills or searches for attorneys who created wills for deceased testators whose original wills have gone missing. These repeated requests illustrate the need for statutory reform in New York to help safeguard original wills and resolve the ongoing cycle of lost wills.
There are many cases involving original wills that were initially stored with the drafting attorney and later lost after the attorney’s death or retirement. New York courts have addressed the issue of lost wills under the framework of the Surrogate’s Court Procedure Act 1407. This statute allows a lost or destroyed will to be admitted to probate if three conditions are met:
(1) It is established that the will has not been revoked.
(2) The will’s execution is proved in the manner required for the probate of an existing will.
(3) All of the provisions of the will are clearly and distinctly proved by at least two credible witnesses or by a copy or draft of the will proved to be true and complete.[3]
Despite SCPA’s safety net, when a family member dies and a will is misplaced, locating it can be difficult for the decedent’s family. Further, as case law clearly illustrates, there are inconsistent outcomes when addressing whether to admit a lost will for probate.
In In re Estate of Kleefeld,[4] an original will was retained by an attorney who predeceased the will’s testator.[5] When the testator died, the will could not be located, prompting the proponent to commence a proceeding to admit the testator’s copy of the lost will to probate under SCPA 1407.[6] Because the will was lost while in the attorney’s possession, the proponent was able to show the testator’s lack of intent to revoke the will.[7] The proponent was also able to establish due execution through the testimony of the two witnesses who attested to the original will; however, the witnesses were unable to testify to the will’s contents.[8] In an effort to prove the contents of the will, the secretary who typed the original will delivered testimony, but even then, the secretary was unable to testify to the substance of the will.[9] While the Surrogate’s Court and Appellate Court held that the requirements of SCPA 1407 had been established, admitting the lost will to probate, the Court of Appeals disagreed, reversing the prior courts’ admission of the copy for probate.[10] The Court of Appeals held that SCPA 1407 was clear on its face when stating that:
“a lost will may not be admitted to probate upon the submission of a conformed copy of the original will and the testimony of one witness which does not establish the actual substantive provisions of the will independently of the copy since pursuant to SCPA 1407 the witness must testify as to the substantive provisions of the original will and not merely to the effect that the submitted copy is believed to be authentic.”[11]
By contrast, in Matter of Castiglione,[12] an original will went missing during an attorney’s office relocation.[13] The court admitted the lost will to probate because the proponent provided a signed photocopy of the will along with a sworn statement from the drafting attorney confirming that the copy was an exact replica of the original will, the attorney retained the original will for safekeeping, and the attorney lost the original will when he moved his office.[14] The court found that the statutory requirements of SCPA 1407 were satisfied and rebutted the presumption of revocation through evidence that the testator believed the original will was still in existence at the time of a subsequent codicil’s preparation.[15] These cases, with vastly different outcomes, illustrate the uncertainty and risks inherent in losing an original will. In both matters, litigation would have been unnecessary if there were a way for attorneys to digitally preserve and file executed wills electronically.
As previously alluded to, the proposed Electronic Wills Act only addresses newly electronically executed wills. It does not include provisions for the digital storage of previously executed wills through traditional methods. Still, we hope the governor will promptly sign the bill and that once law, the Legislature might consider opportunities for the electronic storage of executed paper wills. Helpfully, the Electronic Wills Act already contemplates certain required electronic procedures for the formatting of a will as well as removal and revocation procedures, all of which may be readily expanded to include digitizing executed paper wills.[16]
Further, many of the formalities for executing an electronic will under the Electronic Wills Act mirror the requirements for executing a traditional paper will. Section 3-6.6 of the Electronic Wills Act notes that an electronic will must be a record that is readable as text at the time of signing, signed at the end by the testator or another in the testator’s name in the testator’s physical presence and by the testator’s direction, and must be signed in the physical or electronic presence of the testator by at least two witnesses who must sign within 30 days.[17] The major difference with electronic wills is that the testator may sign in the physical or electronic presence of witnesses and once signed, the will must be electronically filed within 30 days of its execution.[18] If New York is to adopt electronic wills, it is reasonable to apply similar procedures to allow attorneys to digitize previously executed paper wills, provided they meet the same execution standards.
Attorneys who have remained in contact with a testator should be allowed, with the testator’s consent, to digitize the testator’s previously executed will and file the will under the same procedures proposed under the Electronic Wills Act and dispose of the original. If a testator wishes to revoke an electronically filed will, then the same provisions as those in the Electronic Wills Act would apply.[19]
Furthermore, where a testator cannot be located to return an original will, attorneys should also be permitted to store wills digitally after a reasonable period of years following its execution. Other jurisdictions have already implemented policies to address the challenge of storing old wills. In Maryland, attorneys may file original wills with the register of wills if at least 25 years have passed since execution, the testator’s address cannot be found, and the will is not subject to a binding contract.[20] Once filed, the register may destroy the will after retaining a digital copy.[21]
In Colorado, the Electronic Preservation of Abandoned Estate Planning Documents Act provides a procedure for determining whether an original will was abandoned as well as a process for creating an electronic estate planning document for an abandoned original document, namely, filing the electronic document with the state court administrator and then allowing for the destruction of the original document.[22]
The Electronic Preservation of Abandoned Estate Planning Documents Act states that a custodian (e.g., an attorney) must first try to return the original document to its creator through a diligent search, including sending a notice to the creator’s last known address.[23] If the creator does not retrieve the original within 90 days, the custodian may file an electronic copy and destroy the original.[24] The custodian must scan the original document in color, verify that it is a true and complete copy, and file it with the Colorado State Court administrator.[25] A formal filing statement must also be submitted including the creator’s name, aliases, birth date, last known addresses, along with details of the document declaring the electronic copy is true and accurate.[26] Once the electronic estate plan is filed, the court administrator securely stores each electronic document and creates a searchable index of creators’ names and addresses.[27] Once the document has been filed electronically and the date-stamped receipt is issued, the custodian is authorized to destroy the original paper document.[28] These laws recognize the practical burden attorneys face with storing original documents and provide for a secure way to transition from paper storage to digital archives. New York should adopt a similar framework.
To alleviate the issue of lost wills and the storage burden many practicing attorneys bear with regard to older wills, the Practice and Ethics Committee of the Trusts and Estates Law Section of NYSBA would like to propose legislation permitting an attorney in possession of an original will for a period of 25 years from the date of execution, or an original will that a testator requests be digitized, to initiate a process to preserve the will in certified electronic form and later dispose of the original paper will.
Prior to digital conversion and disposal of the original document, the attorney would need to make a diligent effort to contact the testator to return the original. If the testator cannot be located or fails to take possession of the original will, the attorney/custodian may send written notice to the testator’s last known address stating that a certified electronic copy of the will is to be filed with the New York State Unified Court System, and the original will is to be destroyed if the testator does not chose to obtain possession of the original document within 90 days of being notified.
After the expiration of 90 days, the attorney can scan the will in color and submit an affidavit under penalty of perjury stating that the scanned document is a true and complete copy of the original, that a diligent search was performed and that notice was given to the testator’s last known address and/or the custodian received permission from the testator to dispose of the original and maintain a digital copy. At that point, the certified electronic copy is then electronically filed with the New York State Unified Court System. Upon successful filing and confirmation of receipt, the attorney/custodian is authorized to destroy the original paper will. Once a certified electronic copy is filed, it holds the same legal effect as the original and may be submitted for probate. Additionally, a certified digital copy may be revoked following the same procedures as outlined in Section 3-6.7 of the proposed bill and removed from the system as outlined in the proposed bill.
The time is ripe for New York to allow for the complete digitalization of wills. Such legislation should not only permit electronic wills but also authorize the digital preservation of previously executed wills.
This article appears in a forthcoming issue of Trusts and Estates Law Journal, the publication of the Trusts and Estates Law Section. For more information, please visit nysba.org/trusts.
Ellen G. Makofsky is the founding partner of Makofsky Valente Law Group, P.C. in Garden City whose practice concentrates in trusts and estates and elder law. She is a member of NYSBA’s Executive Committee and served three terms as secretary of NYSBA. She has chaired NYSBA’s Working Group to Amend the Power of Attorney Statute, the Elder Law and Special Needs Section, the Membership Committee, the Committee on Legal Education, the Publications Committee and served as co-chair of the Women in the Law Committee. Additionally, she sits on the Board of The New York Bar Foundation. She is the recipient of the 2020 Lifetime Achievement Award from the Elder Law and Special Needs Section of the New York State Bar Association.
Morgan A. Clarke is a third-year law student at Maurice A. Deane School of Law at Hofstra University. A law clerk at Makofsky Valente Law Group, P.C., she is interested in pursuing a career in elder law and estate planning.
Endnotes:
[1] SCPA 2507(1); see also SCPA 2402(9)(v).
[2] The Lawyer’s Code of Professional Responsibility, R 1.15.
[3] SCPA 1407.
[4] 55 N.Y.2d 253, 433 N.E.2d 521, 448 N.Y.S.2d 456 (l982)
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] 40 A.D.3d 1227, 837 N.Y.S.2d 360 (3d Dep’t 2007).
[13] Id.
[14] Id.
[15] Id.
[16] See New York State Assembly Bill A7856 (2025-2026).
[17] See New York State Assembly Bill A7856 (2025-2026).
[18] See New York State Assembly Bill A7856 (2025-2026).
[19] See New York State Assembly Bill A7856 (2025-2026) (Section 3-6.7 states “(a) [a]n electronic Will may revoke all or part of a previous Will. (b) An electronic Will is revoked by (1) a subsequent Will that revokes all or part of the electronic Will; (2) removal of the electronic Will from the custody of the New York state unified court system by: (i) the testator; (ii) another person duly authorized by the testator as proved by at least two witnesses, neither of whom shall be the person removing the electronic Will; or (iii) as otherwise authorized by the uniform rules of the surrogate’s court; or a writing of the testator clearly indicating an intention to effect such a revocation or alteration, executed with the formalities prescribed by this article for the execution and attestation of a Will.”).
[20] MD. Estates and Trusts Code § 4-204 (2024).
[21] Id.
[22] Colo. Rev. Stat.§§ 15-23-101-122 (2024).
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
