The New York Surrogates’ Court is the judicial branch of the legal system that deals primarily with issues concerning a decedent’s estate. These Courts are located in the various counties. In New York City, the locations of the Courts are as follows:
It is commonplace for a person to propose and execute documents to create an estate plan in New York. Recent posts in this blog have talked about various planning papers including a Last Will and Testament, Living Will, Living Trust and Power of Attorney. In view of today’s online capacity, many individuals consider and actually write and execute their own papers without guidance from an attorney. The New York Probate Lawyer Blog has recently talked about the possible issues that many arise from such a process.
An additional consideration regarding the execution of any Will or other document is the level of capacity or competency that the creator has when preparing and signing papers that have significant legal consequence.
A recent article written by Roxanna E. Hammett on March 26, 2020 entitled “The Estate Planning Attorney’s Role in Establishing Testamentary Capacity” and published at www.law.com/njlawjournal/2020/03/26, raises some interesting issues. While the article relates to New Jersey law, the overall subject is applicable to New York Wills and the Probate Process.
When a person dies and leaves a Last Will and Testament, it is necessary to commence a Probate Proceeding to validate the Will. Once the proceeding is complete, the Court admits the document to probate and letters testamentary are issued to the petitioner. The person who files the petition with the Court for probate is typically the individual nominated in the Will.
Probating a Will requires the submission of numerous documents and information including the names of all of the decedent’s distributees (next of kin) and an estimated value of the probate estate. Estate lawyers in New York are familiar with the Surrogate’s Court rules and requirements regarding probate.
Sometimes the full probate can be delayed due to various issues. If an interested person is seeking to Contest the Will then the final determination regarding the validity of the Will may take months or years. The New York Probate Lawyer Blog has published many articles regarding Probate and Will Contests.
When a person creates a New York Estate Plan, one of the most important documents is a Last Will and Testament. A Will is an instrument that controls the disposition of assets that are owned in the name of the decedent alone at the time of death. Assets that are owned in a different manner such as joint ownership or with a designated beneficiary pass automatically to the named party outside of the Will.
In order for a Will to be valid it must be executed in accordance with the statutory requirements provided in the New York Estate Laws. Estate lawyers know that the guidelines provided in Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements” must be strictly followed. If a Will fails to meet the tests of this statute, the Surrogate’s Court won’t admit the Will to Probate. The New York Probate Lawyer Blog has posted many articles regarding Wills, Will Contests and Probate.
Once a person has executed a Will, there are times when he wants to change the terms of the document. Once again, any modifications need to comply with EPTL 3-2.1. This can be done by a Codicil or amendment to the original Will or a by executing a new Will that is properly signed. However, if the original Will is changed by merely handwriting new information on the document or making notes about cancelling it, the Will in original form still remains viable. This is because the changes were not done in accordance with the statute.
There are many requirements in New York estate law concerning the proper execution of a Last Will and Testament. The basic statute setting forth these rules is Estates, Powers and Trusts Law (“EPTL”) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. The validity of a Will requires that a testator sign the Will at the end and that there be two attesting witnesses.
When the statutory formalities to execute a Will are not adhered to there may be estate litigation when the document is presented for probate. An interested party may file Objections to the Will that result in a Will Contest. The New York Probate Lawyer Blog contains many articles concerning estate administration and the probating of Wills.
A Will can be changed or revised as many times as a person desires to do so. However, there are also certain requirements that must followed in order to accomplish a successful revocation. EPTL section 3-4.1 entitled “Revocation of Wills; effect on codicils” contain rules regarding revocation. The statute says that a Will can be revoked or changed by executing another Will or by certain acts of mutilation or obliteration.
It is important for a New York domiciliary to engage is proper estate planning. A lot of time and effort usually goes into creating a Last Will, Living Trust, Health Care Proxy, Power of Attorney and other planning initiatives. It is always a tragedy when a well thought out estate is thwarted by errors relating to ambiguous or defective Will or Trust provisions or defective execution procedures.
The New York Surrogate’s Courts are filled with cases involving Contested Wills. Estate Litigation surrounding the preparation and execution of a Will not only disrupts the testator’s estate plan, it delays the settlement of an estate.
The New York Probate Lawyer Blog has discussed the requirements for executing a Last Will. Statutory requirements are contained in Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. When the guidelines of the statute are not explicitly complied with, the validity of the document may be questioned. Unless a Will is validated by the Surrogate’s Court and admitted to probate, the provisions and dispositions in the Will are not mandated to be followed. Even a slight variation can cause controversy.
Estate planning in New York is important. The creation of a Last Will and Testament and other documents such as a Living Trust, Health Care Proxy, Living will and a Power of Attorney, allows a person to control the disposition of assets and provide directions regarding personal decision-making.
It requires a lot of time and effort to create and finalize these papers. Assets must be reviewed as well as beneficiary designations and property dispositions. Alternate dispositions need to be considered in the event primary beneficiaries pre-decease a testator. The selection of fiduciaries such as Executors and Trustees, and their possible successors, need to be considered. Finally, all the documents that need to be signed must be reviewed and properly executed. Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides strict rules regarding the execution of Wills. The New York Probate Lawyer Blog has published numerous articles regarding the execution of Wills and Will Contests.
Once the above papers are signed it is also important to be certain that the original documents are maintained in a secure location. The various ways to keep these papers include a safe at home or in a secure filing cabinet or on file with an attorney. Sometimes the papers can be placed in a safe-deposit box although this can present problems after death since access may be restricted without a Court Order.
When a Last Will and Testament is submitted to the Surrogate’s Court, the document is always reviewed for due execution. The requirements needed to properly sign a Will are located in Estates, Powers and Trusts Law section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.
The New York Probate Lawyer Blog has published many articles regarding Will execution. The statute is quite explicit and requires that there be a writing and that there be two witnesses. Of course, there tends to be many variations that arise when a Will is offered for probate. Sometimes the witnesses to the Will who may be called upon to testify cannot remember the Will signing ceremony. In other instances, a witness may have died or it may not be possible to locate the witness.
Typically, when a Will is signed, the witnesses sign an affidavit called a self-proving affidavit that sets forth all of the elements regarding proper execution. However, when an interested party seeks discovery under Surrogate’s Court Procedure Act 1404 entitled “Witnesses to be examined; proof required”, or there is a Will Contest, the witnesses need to provide in person testimony.
The execution of a New York Will must comply with the requirements of the estate statutes. It is important to follow these rules so that the Will be validated and admitted to probate. There have been numerous posts in the New York Probate Lawyer Blog explaining the need for the proper execution of Wills. The basic estate law dealing with this matter is Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.
This statute sets forth a number of requirements including: (i) that a Will be signed at the end of the document: (ii) that there be at least two witnesses; (iii) that the testator sign the Will in the presence of the witnesses; and (iv) that the testator declare to the witnesses that he is signing his Will. Continue reading
The preparation and execution of a Last Will in New York requires careful attention to detail. When a Will is being formulated a New York Estate lawyer typically obtains information from a testator regarding assets and intentions concerning beneficiaries.
Since the purpose of estate planning is to insure that a person’s assets are disposed of properly, it stands to reason that a significant amount of time and effort be devoted to examining these issues. For example, the New York Probate Lawyer Blog has published numerous articles that point out that a Last Will typically only controls assets that are held by a decedent in his name alone. Assets that pass by operation of law, such as jointly owned assets or those that have designated beneficiaries such as life insurance or retirement accounts, are not controlled by Will provisions. Therefore, it is important for a testator and for an estate lawyer to understand the nature of the asset ownership so that the plan and the Will dispose of the estate according to a testator’s wishes. Continue reading
New York Probate Lawyer Blog