New York Probate Lawyer Blog

Upon the death of a decedent, one of the first orders of business is determining whether there exists a Last Will and Testament.  If a person dies without a Last Will, then their estate is distributed according to the laws of intestacy.  Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” designates the next of kin who are entitled to inherit an estate.  Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration” provides the rules as to which family members are entitled to become the estate administrator.

When a person creates a Will, an estate is supposed to be administered and distributed in accordance with the terms of the document.  However, before the provisions of a Will can be put into effect, the Will must be admitted to probate.  Probate proceedings in New York are essentially the steps that are taken to have the Surrogate’s Court validate a Will.  Once a Will is admitted to probate, an executor is appointed and the terms of a Will become effective.  In the event a Will is denied probate, then a decedent’s estate is subject to the laws of intestacy unless there are other Wills waiting in line for review.

In many estates, a major problem encountered in probate is locating a decedent’s original Will.  Original means the document on which the original signatures of a decedent and attesting witnesses appear.  It is not sufficient to locate a photocopy or a conformed copy of the paper.  If the original cannot be found then there are strict rules regarding the probate of a lost document.  In particular, SCPA Section 1407 entitled “Proof of lost or destroyed will” provides the requirements for probating a lost Will.

The probate process in New York requires compliance with the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).  One of the most important statutory provisions is EPTL 3-2.1 entitled “Execution and attestation of wills; formal requirements”.  This statute provides the formality necessary with regard to the execution of a Last Will and Testament.  Among the requirements is that a Will needs to have two (2) attesting witnesses.

The New York Probate Lawyer Blog contains numerous articles discussing the probating of a Will as well as aspects of estate settlement and intestate administration.  One common question which clients often ask is whether there is a time limit after a decedent’s death in which a Will needs to be offered for probate.  In short, there is no time limit.  However, any delay in probating a Will may result in the loss of estate assets through foreclosures or other third-party actions.  Also, if it does not appear that a Last Will existed, an administration proceeding may be initiated by a distributee or by a Public Administrator.  The distribution of an estate through intestacy may not be in accordance with a decedent’s estate plan as expressed in a Last Will.

The probate process requires that the original Last Will filed with the Court, along with a Petition for Probate.  Affidavits from the attesting witness are needed.  Information concerning a decedent’s next of kin and assets are also included in the probate petition.

When a person dies leaving a Last Will and Testament, it is necessary to have the Will admitted to probate.  This is typically the situation where a decedent dies and there are assets held in the decedent’s name alone.  The New York Probate Lawyer Blog has published many articles concerning the probate process.  There are also many blog posts explaining that probate is not necessary regarding assets which pass by operation of law.  If a decedent owns bank accounts, real estate or other items jointly with another person whereby the ownership passes to the survivor upon death, probate is unnecessary.  This result is also applicable to assets such as life insurance, retirement accounts and other financial items where there is a designated beneficiary who survives the decedent.

Admitting a Will to probate is the process which occurs through the Surrogate’s Court whereby the Court validates a Will.  When a Will is admitted, then letters testamentary are issued to the petitioner who is typically appointed as the Executor of the estate.  The Executor has the authority to collect assets, pay estate expenses and debts, and to make distributions to estate beneficiaries.

The proceedings in Surrogate’s Court can be delayed and complicated by numerous issues.  There may be questions as to the identity and location of a decedent’s next of kin (i.e., distributees).  Also, questions may arise as to whether the purported Will is invalid, based upon various grounds such as improper execution, lack of testamentary capacity, or undue influence.  In cases where an interested party raises objections concerning probate, there are certain procedures which are usually followed involving contesting a Will.

Estate planning is an important part of an overall financial plan.  The New York Probate Lawyer Blog has published many articles discussing the various aspects of an estate plan.  These items include a Last Will and Testament, Living Will, Revocable Trust, Health Care Proxy and Power of Attorney.  Some of these documents, such as a Health Care Proxy and Power of Attorney, are usually referred to as advance directives.

Advance directives provide a lifetime plan for the handling of personal needs and financial management in the event a person cannot make these decisions for themselves.  In many instances, the existence of advance directives may avoid the necessity of having to commence legal proceedings to obtain the judicial appointment of an Article 81 Guardian.  I have represented many clients in New York Guardianship cases.

With regard to planning through the use of a Will, a major consideration should always be to anticipate every post-death issue.  For example, thought should be given as to whether there may be a potential Will Contest.  A well drafted Will, which is prepared by an attorney who supervises the Will execution, is afforded a number of presumptions as to validity.  However, there is nothing to prevent an heir who has been disinherited from filing objections to a Will in the Surrogate’s Court.  Clients often ask about including a no-contest clause in a Will.  However, a no-contest clause only relates to possible forfeiture of a bequest if a Will is challenged.  Where someone is disinherited, there is no penalty for filing a Will Contest.  One solution to avoid a contested probate is by having all assets transferred into a Revocable Trust during a decedent’s lifetime.  This alternative, however, does not avoid the possibility of a disgruntled distributee from challenging the validity of a trust based upon undue influence or other grounds such as lack of capacity.

There are many issues that arise concerning identifying the next of kin of a decedent.  These issues arise in different contexts.  If a decedent died and left a Last Will and Testament, the probate process requires that all of a decedent’s next of kin (distributees) be given notice of the probate proceeding.  This is because distributees have a right to contest a Will.  A probate petition lists the identity and interests of these persons.  Distributees can execute a Waiver form consenting to the probate of a Will.  Alternatively, a distributee will receive a Citation from the Surrogate’s Court setting a Court date to advise whether a Will Contest is intended.

In a probate case another kinship issue which may arise is whether a decedent was married.  If so, a surviving spouse would be able to file for a spousal election if the spouse was disinherited in some manner.  A spousal election ensures that a surviving spouse receives at least one-third (1/3) of a decedent’s net estate.  Determining a right of election amount can be complicated.  The New York Probate Lawyer Blog has published many articles relating to probate, estate settlement and also spousal right of election.

Determining kinship is also essential with regard to intestate estates where there is no Will.  In these matters, a decedent’s distributees inherit an estate pursuant to EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  Often, there are disputes among distributees as to which person or persons are to be appointed as an estate administrator.  SCPA Section 1001 entitled “order of priority for granting letters of administration” designates the distributees who would have standing to be appointed.