Articles Posted in Probate

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.

The function of estate planning in New York is to provide documents which reflect the intentions of the creator.  Estate planning is a broad topic which in general may encompass many types of objectives.  In its purest form, an estate plan consists of a Last Will and Testament.  In addition, planning may also result in the establishment of a Revocable or Living Trust.  This document contains similar post-death provisions but is implemented with the goal to avoid the probate process.  A revocable or living trust also usually contains pre-death directions for asset management in the event of circumstances such as the creator’s incapacity.

Other aspects of planning may include advance directive papers such as a Health Care Proxy, Living Will and Durable Power of Attorney.  In certain instances, a Medicaid plan may be appropriate which might include pre-death transfer of assets.

The important point is that all planning allows a person to memorialize his intensions regarding his assets and personal affairs, and the selection of executors, trustees, and agents which may be named and nominated in the papers.  Courts are very sensitive to a person’s selection of executors and trustees.  In particular, the nomination of an executor in a Will may take on paramount importance in many cases where the appointment of a preliminary executor is needed for immediate estate administration.

A Last Will and Testament is a document meant to memorialize a person’s intentions regarding the disposition of his property after death.  The various rules and statutes relating to the probate process are typically strictly adhered to by the Surrogate’s Court.  This is because if there are any variations or discrepancies, a decedent is no longer around to explain what was intended.  The Surrogate’s Court is the place where most Wills are filed to commence probate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will as well as other topics, such as intestate distribution and estate settlement.  As many of these articles discuss, the process is commenced by filing a Petition for Probate with the Court and seeking the granting of Letters Testamentary.  The Petition contains a fair amount of information, including the name and address of the petitioner, the decedent’s next of kin (“distributees”) and Will beneficiaries.  Information is also provided regarding the date of the Will, the names of the Will attesting witnesses and the estimated value of the probate estate.

For the most part, the distributees have a right to challenge or contest a Will.  If the document is determined to be invalid, and the decedent is found to have died without a Will, the estate is distributed to the intestate heirs.

When a person dies, one of the initial issues is whether the individual had a Last Will and Testament.  This determination is important because the existence of a Will provides the roadmap for the administration and distribution of a decedent’s estate.  In cases where there is no Will, a person is said to have died intestate and his estate will be distributed according to the intestacy statutes.  Estates, Powers and Trusts Law Section 4-1.1 entitled “Decent and distribution of a decedent’s estate” provides the priority of family members who are entitled to receive estate assets.

Where a Will exists, the document sets forth the manner in which the estate assets are to be distributed.  It also designates the persons who are to act as estate executors and trustees.  The Will provisions may include the creation of a testamentary trust and there may be various bequests and dispositions of real estate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will.  A will becomes valid after it is admitted to probate.  The probate process includes the filing with the Surrogate’s Court of various documents including a probate petition, the original Will, and a death certificate.  Sometimes family members may object to a Will and initiate a Will Contest.

Probating a Last Will and Testament in New York requires that the Court be satisfied that the Will complies with all the statutory and Court-mandated requirements.  The primary source of reference is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the manner in which a Will must be signed.  For example, the statute says that the Will needs to be signed by the testator at the end of the document.  There is also a requirement that there shall be at least two (2) attesting witnesses who must verify that the testator signed the Will in their presence.  The New York Probate Lawyer Blog has many articles concerning issues that may arise with regard to the execution of a Will and estate settlement.  In most instances, a Will is prepared by an attorney.  It is also usually signed by a testator and witnesses under the supervision of an attorney.  In these cases, there is a presumption that the requirements of the statute regarding proper execution were adhered to.

When someone wishes to contest a New York Will, there are typically a number of grounds which are asserted.  Lack of due execution is one ground, as well as lack of testamentary capacity, undue influence and fraud.  Forgery may also be alleged.  During the probate proceeding, all interested parties are given notice regarding the probate case in Surrogate’s Court.  This allows the parties to file objections to a Will and also to engage in pre-objection disclosure provided by Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined, proof required.”

This blog recently discussed a situation where a person failed to timely assert rights and then sought to vacate a decree admitting a Will to probate.  Such a situation recently was the subject of a Queens estate case entitled Estate of Cunningham, decided by Queens Surrogate Peter J. Kelly on June 27, 2023.  In Cunningham, although objections to the Will were filed, the objectant failed to oppose a motion for summary judgment which sought to dismiss the objections.  After the motion was granted and a decree admitting the Will to probate was issued, the objectant tried to vacate the decree.

When a person dies and leaves a Last Will and Testament, the next step is to commence a proceeding to probate the Will.  The probate process can be very complicated.  In the first instance, it is important to locate the original of the Last Will and Testament.  When the original document cannot be located and only a copy is available, it is very difficult to complete probate.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be complied with.  One of the biggest hurdles to overcome is that if the original of the Will was known to have been in the possession of the decedent and cannot be found, then the presumption is that the original Will was revoked.

The probating of a Will in Surrogate’s Court requires that all of the decedent’s next of kin, known as distributees, be notified concerning the Court case.  The reason for such notification is to afford the distributees the opportunity to contest the Will.  In many cases, a distributee agrees to sign a Waiver form consenting to the probate of a Will and the appointment of an executor.  When a Waiver form is not obtained, a proponent of the Will needs to have the Court issue a Citation directed to the non-waiving party.  A Citation is like a summons.  It must be served on a distributee.  The citation has a Court date on which the distributee must appear and tell the Court whether objections to the Will are going to be filed.  If the distributee fails to appear or notify the Surrogate’s Court on the return date, then there is deemed to be a default and the Will is admitted to probate.

When a party defaults in a probate case, it is possible to ask the Court to vacate the default if sufficient reasons are presented.  This situation recently occurred in a Manhattan estate entitled Estate of Frank.  In a decision dated May 25, 2023, Manhattan Surrogate Hilary Gingold granted an application to vacate a probate decree.  It seems that the mother and sole distributee of the decedent had been hospitalized due to an injury which occurred shortly after being served with a Citation.  The injury caused the distributee to be cognitively impaired.