Probate

January 2, 2013

New York Will Witnesses May Not Receive a Beneficial Disposition in the Will

The execution or signing of a New York Last Will is subject to very strict statutory requirements. While the Will signing ceremony may seem somewhat formal and old-fashioned the requirements of the statutes must be adhered to for the Will to be admitted to probate or validated.

As previously reviewed in earlier posts in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 provides the “formal requirements” for the “Execution and attestation of wills”. A summary of the requirements includes the following:

(i) The Will must be signed at the end.
(ii) No effect is given to any matter which is after the signature or added after the
Will is executed.
(iii) The Will should be signed in the presence of the attesting witnesses.
(iv) The testator should declare to the witnesses that the paper is his Will.
(v) There should be at least two (2) witnesses to the Will.

Sometimes obtaining the mandatory two (2) witnesses is not an easy task. If the Will is signed in an attorney’s office it is typically easy for the supervising attorney to obtain independent attorneys or office staff to act as witnesses. However, sometimes due to inconvenience or a testator’s inability to travel, the Will execution ceremony is performed in a residence or other location. In such situations, controlling the execution ceremony so that it complies with the statutory requirements is more difficult.

Attention is called also to EPTL Section 3-3.2 entitled “Competence of attesting witness who is beneficiary; application to nuncupative Will.” Essentially, this statute provides, in part, that where an attesting witness receives a benefit under the Will, such disposition is to be deemed void unless there are at least two other witnesses who do not receive a beneficial disposition. Thus, if the benefiting witness’s testimony is needed to validate the Will, the disposition is voided and lost.

A recent case decided by Surrogate John M. Czygier (Suffolk County Surrogate’s Court) on December 14, 2012 and reported in the NYLJ on December 31, 2012 cited as “Probate Proceeding 2012-337”, is an example of a problem presented by a witness having a beneficial interest in a Will. In this case, the Will had a provision whereby a bequest of $100,000 was made to the “Peconic Landing Employees Appreciation Fund.” All three attesting witnesses were employees of Peconic Landing and the Court found that they would benefit from the bequest to the Fund. Therefore, the Surrogate determined that the witnesses received a “beneficial disposition’ and voided the $100,000 bequest to the Fund.

As can be seen from the above decision it is important that the preparation and execution of a Last Will be done with an eye towards potential problems in probating the Will. New York Estates Lawyers typically are familiar with the statutory requirements for Will executions and probate and work closely with their clients to achieve their estate planning goals.

December 26, 2012

New York Estates Often Have Unknown Heirs

by Jules M. Haas

The New York Probate Lawyer Blog has discussed in numerous posts that determining the identity of a decedent’s distributees (i.e., next of kin) is very important.

It was recently reported in an article by Jacqui Goddard in The Telegraph on December 27, 2012, entitled “Louis Armstrong’s secret daughter revealed, 42 years after his death” that the jazz legend, Louis Armstrong, had a daughter whose identity was kept secret until 42 years after his death. Although Armstrong died in 1971, his daughter just recently stepped forward claiming she was his natural born child. Interestingly, the article states that Armstrong’s fourth wife had signed a Probate Court affidavit asserting that he had no biological children.

In New York when a Last Will is filed with the Court for probate, the Probate Petition requires that all of the decedent’s next of kin be named and that their addresses be provided. A New York Estate Lawyer typically prepares the Probate forms and Probate papers that must be filed wit the Surrogate’s Court. In many instances the Court asks for additional information regarding kinship. Sometimes when there is only one heir, the Court will ask for a kinship affidavit. Also, when the heirs or distributees are somewhat distant, such as nieces and nephews or grand nieces or nephews, more detailed information is needed. These kinship affidavits provide the Court with full information and documentation regarding the decedent’s family tree.

Problems arise when a decedent’s next of kin are either unknown or cannot be located. The use of professional geneologists and kinship hearings may be required. In the case of Louis Armstrong, it appears that his estate affairs were settled many decades ago. However, in somewhat similar cases where a person claims to be the child of a decedent that the child’s status is disputed, the alleged or purported relationship must be disclosed in the Probate Petition and all interested parties must be given an opportunity to have a hearing regarding the alleged child’s rights. Such rights include the opportunity to Contest a Will or inherit an intestate share. Usually an official Surrogate’s Court notice called a Citation will be served on the interested parties to advise them about the Court proceedings.

It is not always easy to determine or locate a person’s heirs. Individuals may have heirs as the result of multiple siblings or marriages or adoptions and these individuals may be dispersed throughout many counties. Nevertheless, kinship identification is an essential aspect of estate administration and estate settlement.

November 7, 2012

New York Probate Can Be Simple or Complex

by Jules M. Haas

The New York Probate of a Last Will can be relatively smooth depending upon many factors. Of course, everyone has heard stories of feuds over a decedent’s estate and Will Contests that are both lengthy and costly. However, for the most part, the probating of a Will is not controversial.

Essentially, the probate process is the validating of the Will by the Court so that the terms of a Will regarding the disposition of the estate are authorized by the Surrogate’s Court. The Executors or Trustees who may be named in the Will are issued Letters Testamentary or Letters of Trusteeship by the Court. These fiduciaries are then empowered to handle estate or trust affairs.

The Probate Proceeding requires the filing of a petition with the Court along with other papers such as affidavits from attesting witnesses and possibly Waives and Consents from other interested parties. Sometimes, the Court must issue a Citation to be served on interested parties who do not voluntarily consent to the probate of the Will. The Surrogate’s Court Citation is like a Summons and provides a Court date for the parties to appear in Court and advise the Court as to their intentions. The Citation is served on the parties either personally or sometimes by mail.

The New York Probate Lawyer Blog has provided many posts regarding various aspects of probate. The preparation of a clear and complete estate plan which includes a Last Will is the first and, maybe, the most important step in facilitating an easy probate proceeding. Problems often arise when a decedent’s Will has provisions that are unclear or ambiguous. The execution of a number of different Wills over a short period of time where beneficiary shares are drastically changed also leads to post-death disputes and Will Objections based upon lack of testamentary capacity and undue influence.

Of course, there is no guaranteed method of leaving a Last Will and avoiding a potential Will Contest or Estate Litigation. There are, however, some strategies that can lessen the likelihood of fighting. Many Wills contain an In Terrorem Clause or no-contest clause that provides that anyone who attempts to challenge the validity of the Will is to forfeit their inheritance if they are unsuccessful. Also, the creation of a Living Trust can avoid the probate process entirely although these trusts are subject to Court challenge.

The Estates, Powers and Trusts Law and Surrogate’s Court Procedure Act provide many provisions regarding the creation, execution and interpretation of Wills and the procedures to probate and challenge a testamentary document such as a Will.

Experienced New York Estate Lawyers are familiar with the laws regarding estate administration. It is essential that persons who are nominated as Executors in a Will or beneficiaries or other interested persons obtain advice as to the steps to follow in a probate matter and the likelihood that they may or may not be successful regarding their desired outcome.