Articles Posted in Probate

A Last Will and Testament in New York must comply with the basic statutory requirements provided by the estate laws.  The primary statute regarding the fundamental aspects of Will preparation and execution is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.

According to the statute, a Will is to be in writing, the testator is to sign at the end, and there must be at least two witnesses attesting to the signing.  The New York Probate Lawyer Blog has published numerous articles discussing the requirements for the due execution of a Will and different issues that might arise, particularly in the context of a Will contest.  In order for a Will to be admitted to probate, there must be a determination in the Surrogate’s Court that the document was duly executed.

The recent occurrence of the COVID-19 virus has made the ordinary execution of a Will difficult at times.  In the past, once an individual was ready to sign a Will, he or she would gather, usually in an attorney’s office along, with the witnesses and the signing ceremony would be conducted.  However, the COVID situation has created certain obstacles to the normal procedures due to lockdowns and social distancing.  A recent Orange County estate case decided by Orange County Surrogate Timothy McElduff, Jr. on December 7, 2020 entitled Matter of Estate of Bowen demonstrates the type of problems that the COVID pandemic can produce.

It is an important role of estate planning to prepare a Last Will and Testament.  This document allows a testator to set forth in various provisions his desires as to the disposition of his estate.  Once a Will is admitted to probate, the terms become validated and the testator’s estate plan is effectuated.  It is then subject to being finalized by the executor settling the estate.

As has been discussed in a number of articles in the New York Probate Lawyer Blog, that the Surrogate’s Court requires that the original Will be filed as part of the petition for probate.  The Court needs to see the original signatures of the testator and the attesting witnesses, as well as the Will provisions.  Unfortunately, it is a common occurrence that after a testator dies, the original Will cannot be located.  Instead, usually a copy of a Will is found.  In these circumstances, Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be referred to in order to resolve the issue regarding the probate of the copy.

A recent decision in a Manhattan estate case provides a good example of the issues presented in these types of cases.  Estate of Rothberg was decided by Manhattan Surrogate Rita Mella on September 25, 2020.  In Rothberg, the decedent’s son petitioned to probate a lost Will.  He was the sole residuary beneficiary and the named executor.  The proceeding was uncontested.  Apparently, after the decedent’s death, the petitioner-son received the original Will from the decedent’s attorney.  However, prior to filing it with the Court, the son lost the original.  There is a presumption that a Will that cannot be located after death was destroyed by a decedent with an intention to revoke it.  However, the Court in Rothberg noted that such presumption does not exist if the attorney had possession of the Will.

When a person dies and leaves a Last Will and Testament, it is necessary to commence a probate proceeding to have the Will validated.   Probate in New York requires that various documents be filed with the Surrogate’s Court.  The original of the Will needs to be provided along with an original death certificate.   The petitioner is typically the person named as the Executor in the Will.  A Probate Petition is prepared which contains information including the date of the Will, the names of the attesting witnesses, the estimated value of the estate and the names and addresses of all parties interested in the matter.  These parties include the decedent’s distributees (next of kin) and the beneficiaries named in the Will.

There are many situations that may delay admitting a Will to probate.  One common occurrence is a Will Contest.  If the decedent’s distributees file Objections to the Will, then estate litigation associated with a Contested Will can delay final probate for a year or more.

Another delay may result where it is difficult to identify or locate the decedent’s distributees.  If a due diligence search needs to be completed before probate, there may be a delay for many months.  The New York Probate Lawyer Blog has posted many articles concerning Kinship, Probate and Will Contests.

When a person dies and the initial steps are taken to administer his estate, one of the first issues to be resolved is the domicile of the decedent.  Domicile is an interesting topic and the determination of domicile can be very complicated.  Essentially, it is the place where a person maintains a permanent and principal home to which he intends to return.  A person may have many residences but only one place of domicile.

For many aspects of estate administration domicile will determine which state’s laws apply to a decedent.  This determination can affect the rights of the various parties who have an interest in the estate and also which local tax laws can be applied.   An example is when a New York domiciliary dies, his Will is typically probated in New York and the New York estate and probate laws are looked to regarding estate administration.

Estate litigation can arise when an individual’s domicile is unclear.  While this issue can be determined by examining many factors such as where the decedent filed his local taxes or had a driver’s license, or the number of days per year spent in a certain state, the ultimate determination can be time consuming.  New York Estate lawyers deal with such matters regularly.

Probating a Will in New York can involve many complex procedures. A person typically prepares an estate plan and executes a Last Will so that his intentions regarding the disposition of his estate can be clearly set forth. Since the validity of a Last Will is extremely important, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides strict guidelines for executing a Will. The need for signatures, witnesses and other statutory and legal requirements are all intended to safeguard the Will execution process.

The New York Probate Lawyer Blog has posted many articles concerning probate. When a Will is filed with the Surrogate’s Court for probate, there are many other papers that need to be provided to the Court such as witness affidavits. Also, the decedent’s next of kin must be identified and given the opportunity to object to the Will. A New York City Probate Lawyer is familiar with these requirements. Continue reading

Last Wills are part of estate planning. The contents of the Will contains numerous provisions dealing with the distribution of estate assets. There can be pecuniary bequests which provide for a definite amount of money to be given to a beneficiary. There can also exist residuary provisions that direct the manner in which the balance of an estate is to be disposed of.

One of the most important provisions in a Will is the language that is concerned with the appointment of an Executor. The Executor is the person who is responsible for administering the probate estate. After a Will is admitted to probate, the Court issues letters testamentary to the nominated Executor. The nomination of an executor in a Will is essential. Continue reading

An estate executor or administrator has many obligations with regard to an estate.  The New York Probate Lawyer Blog has discussed in many posts the various powers that an estate fiduciary can exercise.  These powers include the right to collect assets and pay expenses.

However, in addition to the powers to be used to administer an estate, a fiduciary is responsible for various fiduciary duties. For example, an executor has a duty to treat estate fiduciaries fairly. Also, the executor owes a duty of loyalty to the estate and cannot engage in acts considered to be self-dealing. Such conduct might involve taking advantage of the estate to further the fiduciary’s personal interest. For example, New York City estate lawyers are aware that it would be improper for a fiduciary to purchase an estate asset for a price below the fair market value. When an administrator or executor acts improperly, such conduct is viewed as a breach of fiduciary duty. Continue reading

Probate of a Will in New York is primarily controlled by the various estate laws. These statutes are part of the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).   The probate process has been examined in many of the articles appearing in the New York Probate Lawyer Blog. When a person dies and leaves a Last Will, a petition for the probate of the Will is filed in the Surrogate’s Court. The petition contains information regarding the decedent, his address, the name of the petitioner, the date of the Will, the names of the attesting witnesses to the Will, the approximate value of the estate and the names and addresses of the persons interested in the estate.

The petition is filed with the Court along with an original death certificate, the original Will and other mandated documents. Kinship affidavits may also be required. Continue reading

An estate in New York requires the appointment of a fiduciary. Executors or Administrators are the fiduciaries who control estate settlement. Executors are appointed when there is a Last Will to be probated. Administrators are appointed when a person dies intestate (without a Will).

There are many instances when the initial probate proceeding or administration proceeding cannot be completed without extensive delays. A very common example of such a situation involving a delay is a Will Contest. When a Probate Petition is filed with the Surrogate’s the estate laws require that notice be given to the decedent’s next of kin. The New York Probate Lawyer Blog has published many posts regarding the probate procedures and the notices that must be given to family members. This notice is typically in a form called a Probate Citation. Continue reading