New York Probate Lawyer Blog
The probate process in New York is comprised of a number of stages. At the outset, the original Last Will and Testament of a decedent must be located. This is not always as easy as it seems. In some cases, only a copy of a Will is found. When this happens, a search is necessary to locate the original document. This is because a copy of a Last Will must meet a rigorous test to be admitted to probate. Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed Will” provides the rules regarding admitting a lost or destroyed will to probate. The main impediment in these cases is that when an original Will is known to have been in the possession of a decedent, and it cannot be found, there is a presumption that it was revoked by the decedent.
The next stage is filing a probate petition and a Will with the Court to commence the probate case. Once all of the necessary papers are filed, all of the interested parties must be notified about the proceeding. Typically a Probate Citation is served on parties who do not sign Waiver and Consent forms to probate. At this stage, interested parties may have a right to object to the probate of the Will. Issues may arise as to whether an interested party has standing or the right to file objections.
SCPA 1410 entitled “Who may file objections to probate of an alleged will” sets forth the criteria regarding a person’s right to object. In short, someone must have a pecuniary interest that will be enhanced if a Will is denied probate. The statute requires that there be an adverse effect due to the probate of a Will.
There are cases where a person may otherwise qualify to file objections but be precluded due to signing a Waiver and Consent or another document. Prenuptial agreements and marital separation agreements often contain waivers regarding estate rights. These waivers typically relate to receiving any estate benefits and also serving as an estate executor.
A recent Westchester estate case decided by Westchester Surrogate Brandon R. Sall on July 22, 2022 entitled Estate of Henry G. Miller concerned a prenuptial agreement. In this case, a decedent and his spouse had executed a prenuptial agreement prior to their marriage. After the decedent died, the spouse attempted to engage in SCPA 1404 pre-objection discovery with an intention to file objections to the Will. The estate preliminary executors filed an application with the Court to strike the spouse’s appearance in the proceeding and to enforce the waiver provisions contained in the agreement. The Court reviewed the agreement and found that the terms of the agreement precluded the spouse from having any pecuniary interest in the estate. Moreover, the Court pointed out that the spouse did not question or object to the validity of the agreement. As a result, the Court found that the spouse did not have the standing to participate in the probate proceeding.
Probate proceedings in the Surrogate’s Court can be very complicated. Consultation with, and representation by, an experienced estate lawyer, can be essential. Call Me Now for a free confidential review of your estate or guardianship issue. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.