New York Probate Lawyer Blog

August 12, 2011

New York Executors Have Fiduciary Responsibilities and Are Subject to Court Review

The New York estate settlement process involves many different requirements and responsibilities. An Executor is the person or institution appointed by the Surrogate’s Court to administer or carry out the terms or provisions in a Last Will. The responsibilities of a person named as Executor begins immediately after the death of the decedent.

An Executor’s first duty is to file the Will with the Court and prepare a petition for probate. The Court must officially appoint the Executor before he or she has authority to handle estate affairs. While information provided in the probate petition is the same whether filed in Nassau, Suffolk or Queens counties, it may not always be easy to provide the required data. Among the items needed to be completed is a list of the names and addresses of all of the decedent’s distributees (i.e., next of kin). While this may be a simple task where a decedent is survived by a spouse and/or children, the information may not be so easy to provide where the decedent’s closest relatives are cousins and spread out throughout many different countries.

In a number of estates where I represented the Executor, distributees numbered in the twenties and many lived overseas. Also, particular problems arise when the decedent was orphaned or estranged from his or her family at a young age.

The named Executor is often faced with kinship issues such as these. Also, the potential for a Will Contest always exists. Thus, the Executor’s obligations can be quite extensive and complex even before the actual administration of the estate begins.

Once the Executor is actually appointed by the Court, it is his or her job to collect the decedent’s assets; pay bills, taxes and claims; and distribute the estate assets to the estate beneficiaries. In some instances, the Will may name more than one person as Executor and disputes may arise between the Executors. In a recent case decided by Surrogate Edward W. McCarty on June 2, 2011 and reported in the New York Law Journal on June 20, 2011, one of the Executors interfered with the sale of the decedent’s
residence. This conduct prompted the other Executor to commence a Court proceeding pursuant to Surrogate’s Court Procedure Action section 719 for removal of the Executor.

Even routine matters may pose extraordinary problems. As noted above, one duty of an Executor as a fiduciary is to determine and satisfy a decedent’s debts or the claims against the estate. An Executor who improperly performs this task may end up personally responsible for payment. However, determining the extent and validity of a claim or debt can be difficult. As reported by Letitia Stein on July 27, 2011 in the St. Petersburg Times, a lawsuit was filed against the estate of a woman by a hospital which claimed the deceased woman incurred over 9 million dollars in medical expenses prior to her death.

Determining and paying estate taxes or estate income taxes is also a complex matter. Just this past year Executors and other fiduciaries were required to examine the new tax laws very closely to determine whether an option concerning the cost basis of estate assets or utilizing an increased estate tax exemption would be most beneficial.

Distributing estate assets to beneficiaries can also have many problems. Quite often, beneficiaries are minors and payment must be made to a Trust or to a Guardian appointed by the Court. Also, beneficiaries may not agree with the calculations utilized in computing their shares or may object to some action taken or not taken by the Executor. A contested accounting proceeding may result from these disputes. Additionally, a beneficiary may die before receiving his or her distribution and a proper estate fiduciary must be appointed for the beneficiary’s estate before his or her share can be paid out.

The many responsibilities and issues faced by Executors and other estate fiduciaries in administering an estate are endless. Having an experienced estate settlement attorney is important to advise the fiduciary concerning these matters in estate administration

August 9, 2011

Estate Litigation Can Complicate and Delay Settlement of Decedent’s Estates

by Jules M. Haas

Attorneys familiar with probating a Last Will throughout New York, such as in the Bronx and Brooklyn, are often confronted with issues that result in Court litigation. Many of these controversies involve family disputes and disagreements that have origins many years before the death of the decedent. Once a person dies, opportunities are presented to activate long held disagreements and family disharmony.

It is not uncommon for a testator to prepare a Will and disinherit a child or other close relative. New York law does not require that a person leave anything to a child. However, as previously discussed in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law section 5-1-1-A requires that a portion of an estate be left to a spouse.

After being disinherited, a disgruntled child can use the requirements of the probate process to Contest a Will. In his or her view, the testator’s Will should be deemed invalid because lack of capacity or undue influence was the cause of the disinheritance and not the personal disharmony that existed for many years. Since the decedent is no longer around to express his or her desires, it is now up to the Court and the litigants to sort out the family dynamics or dysfunctional relationships.

Will contests in the New York Surrogate’s Court, like elsewhere, can be time consuming and costly. Examinations of attesting witnesses, review of the Will execution ceremony and discovery of information reflecting upon the decedent’s capacity can be an excruciating experience for the family members involved. A recent article by Mary Ann Spato appearing in NJ.com on July 26, 2011 recounted the story of author Belva Plain who died last October. It appears that for almost 20 years prior to her death the decedent had fully supported her son, John, based upon an agreement that John would not contact members of the family or claim any part of her estate. Notwithstanding the agreement, after Belva died, John sought to void the agreement and claimed that his mother had been unduly influenced by his sisters. The Court ultimately ruled against John finding that he had no claim against his mother’s estate.

A similar pattern was seen with regard to the estate of the late entertainer James Brown. As reported by Matt Birbeck on July 20, 2011 in RollingStone.com, Brown, who had an estate valued at about $100 million dollars, died in 2006. He left almost his entire estate to a Trust to benefit underpriviledged children in South Carolina and Georgia. However, after a Will contest by his seven children and fourth wife, the estate was split between the family and the Trust. Nevertheless, as reported, none of the estate money has yet to be paid out and there is still an ongoing dispute concerning Brown’s final place of burial.

Another area that has been a source of many Court battles concerns the transfer of a person’s assets prior to their death. Such transfers can destroy even the best estate plan and leave an estate without any assets to be paid to the beneficiaries named in a Last Will. The creation of joint ownership or designating beneficiaries on bank accounts causes these assets to pass to a joint owner or beneficiary automatically upon death, thus insulating them from the control of an estate fiduciary such as an Executor or Administrator. The provisions of a Will or the intestate statutes are essentially avoided. As a Nassau estate attorney, I have seen many instances where children, friends and caretakers rearrange a person’s assets prior to death by having their names added as co-owners or beneficiaries. After the decedent passes on, the Will beneficiaries and estate Executor or Administrator are faced with the arduous task of engaging in litigation to discover and recover the decedent’s assets. Questions of undue influence and intent surround these proceedings and the decedent cannot express his or her actual desires.

July 28, 2011

Ten Tips for Planning Your Estate and Will in New York

by Jules M. Haas

As the New York Probate Lawyer Blog recently reported, a majority of Americans believe that planning an estate and putting together a will is important.

However, as the survey also discovered, a majority of those questioned do not have the proper documents in place for themselves. A large percentage (36 percent) of parents with children in the home reported they don’t believe wills or estate plans are among the most important documents to have on hand.New York Probate Lawyers would argue that for people with children, the benefits of having estate plans in New York are extremely important. While many people consider death a far-off event that can be dealt with at a later date, the reality is that no one knows when they will die.

For that reason, making plans to leave assets behind to loved ones is important now. And for those who do not have large assets, such as business interests or real estate, it is still essential to make sure that documents are in place to pass on life insurance policy benefits or other assets such as stock funds and retirement benefits. These matters should be handled sooner rather than later. Ensuring that your wishes are followed after your death is important, as is alleviating the burden on loved ones left behind. The selection of guardians for minor children and the naming of executors and trustees is also an essential part of developing an estate plan.

Without a Last Will, New York intestate laws will determine which family member will receive your assets. Planning can save on taxes and confusion, especially if minor children are involved. Without proper documentation, the process can be time-consuming and frustrating for loved ones who are left to sort out the pieces. Having everything laid out can save everyone a lot of trouble.

Here are 10 tips from CNNMoney about estate planning:

No matter your net worth, it’s important to have a basic plan in place: Such a plan ensures that your family and financial goals are met after death.
An estate plan has several elements: They include: a will; a power of attorney; a living will and a health-care proxy. For some people, a Trust may also make sense. When putting together a plan, you must be mindful of both federal and state laws governing estates.
Taking inventory of your assets: Your assets include investments, retirement savings, insurance policies, and real estate or business interests. Ask yourself three questions: Whom do you want to inherit your assets? Whom do you want handling your financial affairs if you’re ever incapacitated?
Everybody needs a will: A will tells the world exactly where you want your assets distributed when you die. It’s also the best place to name guardians for your children. Dying without a will — also known as dying “intestate” — can be costly to your heirs and leaves you no say over who gets your assets.
Trusts aren’t just for the wealthy: trusts are legal mechanisms that let you put conditions on how and when your assets will be distributed upon your death. They also allow you to reduce your estate and gift taxes and to distribute assets to your heirs without the cost, delay and publicity of probate court, which administers wills. Some also offer greater protection of your assets from creditors and lawsuits.
Discussing your estate plan with your heirs may prevent disputes or confusion: Be clear about your intentions and help remove potential conflicts after you’re gone.
The federal estate tax exemption — the amount you may leave to heirs free of federal tax — has recently changed and more changes are upcoming: The estate tax exemption was $3.5 million in 2009, and is now $5 million through 2012.
You may leave an unlimited amount of money to your spouse tax-free, but this isn’t always the best tactic: By leaving all of your assets to your spouse, you may waste your estate tax exemption and actually increase your surviving spouse’s taxable estate.
There are two easy ways to give gifts tax-free and reduce your estate: You may give up to $13,000 a year to an individual or $26,000 as a couple, this includes medical bills for someone.
There are ways to give charitable gifts that keep on giving: If you donate to a charitable gift fund or community foundation, your investment grows tax-free and you can select the charities to which contributions are given both before and after you die.

July 25, 2011

Manhattan and Other New York Couples Still Face Estate and Other Problems Under the Same-Sex Marriage Law

by Jules M. Haas

Beginning on July 24, 2011 same-sex couples will be allowed to marry in New York. As is common with most new laws, marriage equality provides many new estate and property rights while leaving unanswered other issues.

As is provided throughout New York estate statutes such as the Surrogate’s Court Procedure Act (SCPA) and the Estates, Power and Trusts Law (EPTL), marriage creates a plethora of spousal rights that are quite beneficial. For instance, EPTL section 5-1.1-A provides for a spousal right of election. In essence, the statute seeks to prevent one spouse from disinheriting the other through a Last Will. The statute grants the disinherited spouse certain rights to receive a minimum share of a decedent’s estate.

Similarly, where a person dies intestate without a Last Will EPTL section 4-1.1 provides that the surviving spouse is to receive a share of the estate. Absent the recognition of same-sex marriage, the death of one partner in a same sex relationship left the surviving partner as nothing more than a stranger with regard to estate distribution unless the decedent had actually named the survivor as a beneficiary under a Last Will or other testamentary document such as a revocable trust.

Manhattan probate and administration proceedings, as well as proceedings throughout New York, have been dramatically changed by the new law. Despite these new state entitlements, questions and problems remain, particularly with regard to estate planning and government entitlements. As of now, a federal statute called the Defense of Marriage Act (DOMA) provides that federal law only recognizes a marriage between a man and a woman. Thus, the same sex marriages that result in the recognition of state-level benefits are ignored for purposes of federal law. As an example, the New York Probate Law Blog has discussed the amendments to the Federal estate tax laws that were enacted in December 2010. Among the changes in the Federal law was a provision that allowed the “portability” or transfer of the unused $5,000,000 estate tax credit between spouses. However, such portability appears not to be available at present to validly married New York same sex couples since they are not considered to be married under Federal law. New York estate planning and estate settlement issues can be very complex given the conflicting application of laws. The same problem arises with the unlimited estate tax marital deduction which would be applied for New York estate tax purposes but not Federal estate tax.

In an article entitled For Love and Money: Inequalities Remain Despite Same-Sex Marriage, written by Allison Arden Besunder published in Law.com on July 1, 2011, many of the “disparities” and conflicts between Federal and New York State laws are discussed.

I represent clients in Surrogate’s Court proceedings and estate tax and property matters. As a New York City estate attorney, it is apparent that clients preparing their Wills and executors administering an estate require an indepth understanding of both Federal and State laws.

July 22, 2011

Using Mental Hygiene Law Article 81 to Protect Family Members Key in New York Counties such as the Bronx and Westchester

by Jules M. Haas

It seems like every week you hear a story on the news or read in the newspaper about an elderly person who suffers physical abuse, either by a caretaker or family member. Sometimes the person victimized is handicapped or otherwise dealing with challenges in life.

Sadly, it often takes law enforcement intervention to protect these adults. But there is another type of abuse in New York that sometimes goes unreported and it involves people who try to take advantage of a person’s finances.In other cases, an older adult is simply no longer capable of handling his or her own affairs. In still other situations, a parent of an adult child with mental or physical challenges wants to make sure he or she is cared for after the parents pass on. A New York Guardianship Attorney can assist in such cases via New York’s Mental Hygiene Law Article 81, which allows for the appointment of a guardian to handle a person’s financial affairs or personal needs. The New York Probate Lawyer Blog has discussed many aspects of Guardianship occurring throughout New York in counties such as the Bronx and Westchester.

A special-needs trust may also be established to ensure that an adult child is cared for. Too often, parents will purchase life insurance for this purpose, not realizing that a lump sum settlement can make an heir ineligible for social security, Medicaid or other vital government programs.

People will sometimes use the lure of money and the instability of an elderly adult’s mental state to try to take advantage. But New York State laws provide opportunities to stop this type of injustice.

Under Mental Hygiene Law Article 81, there are certain guidelines that set forth factors a judge will take into consideration when deciding to appoint a guardian and the powers that guardian will have. This can be a litigious process, with family members arguing about whether a guardian should be appointed or not. But it also offers more protection than a power of attorney, which grants legal authority, sometimes broadly, to act on a person’s behalf and can be easily abused.

An interesting case in New York where these issues have been brought up is the case of heiress Huguette Clark, the 104-year-old who was a recluse but who had homes and assets worth hundreds of millions of dollars.

Her case is fascinating not only because she was worth millions of dollars, but also because she didn’t live an all-out lifestyle. Ms. Clark lived mainly in hospital rooms. Her case is also not unique because distant family members allege that her attorney unlawfully solicited a $1.5 million gift from her in 2001, as previously discussed in the New York Probate Lawyer Blog.

Knowing and understanding the tools of guardianship proceedings and the ways to help an incapacitated person can assist you and your family in protecting loved ones and ensuring they are properly cared for, either in their old age, or after you pass on.

In situations like these, an experienced guardianship lawyer is necessary to assess a case and determine the best course of action. The last thing a person expects is for the wealth and assets they’ve acquired over their life to be squandered by a fraudster. If they are being taken advantage of, they deserve someone to intervene on their behalf.

July 19, 2011

Queens and Brooklyn Will and Estate Planning Is Necessary

by Jules M. Haas

A recent survey posted on The Wall Street Journal’s MarketWatch website found that while Americans believe that estate planning and wills are important, they do not have the documents in place for themselves. Residents of Queens and Brooklyn, particularly those owning homes, should not leave the disposition of their assets and estate settlement to be determined by inheritance statutes.

For New York Estate Planning Lawyers, this seems to be an accurate survey. Most Americans would be able to tell you what a will is and that it is necessary, but many also would probably admit they haven’t made any plans for what will happen to their assets when they die. Because most people consider death a far-off event, they don’t plan today.And that can be dangerous. New York wills and estate planning is critical because not only does it save your relatives time, money and effort when you die, it ensures that the wealth you spent years accruing doesn’t get swept away in taxes or go to someone other than your desired beneficiary.

According to the survey, which was conducted by EZLaw, 60 percent of Americans believe that all adults should have a will or estate planning documents. But only 44 percent report that they themselves have these documents in place. I have helped many clients with Brooklyn probate matters as well as Queens estate administration. Proper planning is essential to expediting these proceedings.

In contrast to those numbers, 36 percent of Americans with minor children do not believe that wills or estate plans are among the most important documents to have on hand. Rather, adults with minor children in the household rank birth certificates (76 percent), and titles/deeds for property and vehicles (70 percent) as the most important. While parents with minors understand that a court will decide the child’s legal guardian if they die before the child turns 18 and there is no will, only 39 percent have any documents in place for such an event.

Reasons given for not making a will or estate plan a priority vary widely. According to the survey, 37 percent of Americans cite a current focus on “essentials,” such as paying bills and buying groceries, as the top reason they don’t have any estate planning documents. Other reasons cited by survey respondents include:

Not necessary (18 percent).

Too complicated to deal with right now (16 percent).

Too expensive (14 percent).

Belief that their spouse and/or children will automatically receive any assets that they have (13 percent).

Too time consumng (6 percent).

Gender and age also play a factor in the findings, the survey reported. For most Americans, finding money to retire and preserving their health are main priorities rather than protecting their financial assets. Women are more concerned with their weight (47 percent) than protecting their assets (43 percent).

Most disturbing is that parents with minor children haven’t made plans to care for their children in the event of their death. While New York Intestate Laws would dictate that the children receive the assets, they wouldn’t necessarily determine where the child would live. This could spark contentious debate among surviving family members and could be avoided by having documents prepared and filed away. Additionally, more flexibility can be provided if a trust is established for a child rather than relying on the often restrictive Court appointed guardianship rules.

It doesn’t take much to prepare a will and other directives in the event you die. New York Estate and Will Lawyers have done this for many families and individuals and are prepared to help you, too.

July 14, 2011

New York Inheritance By Children Born After A Person Dies Present Many Issues

by Jules M. Haas

New York law provides for many requirements regarding inheritance and Last Wills. The New York Probate Lawyer Blog has discussed that when a person dies without a Last Will, his or her estate is distributed to the distributees or “next of kin”. New York Estates, Powers and Trusts Law section 4-1.1 sets forth the priority of the persons who can inherit.

As can be imagined, in the context of inheritance and estate planning, determinations regarding beneficiaries can often be complex. Advances in science and technology involving procedures such as artificial insemination can create situations not clearly covered by existing statutes. For example, what are the inheritance consequences when a person dies and, by utilizing his stored sperm samples, a child is conceived years after his actual death.

This situation has arisen on a number of occasions and has caused controversy regarding rights to receive benefits such as social security survivor benefits. In a recent case decided by the U.S. Court of Appeals for the 4th Circuit, Schafer v. Astrue, the Court encountered a situation where a child was born seven years after a person’s death through the utilization of stored sperm samples. The decedent had been domiciled in Virginia at the time of his death. The Court ultimately decided that the child’s right to receive the Social Security benefits was dependent upon whether the child had the right to inherit under the applicable state law’s inheritance statutes, which in this case was Virginia. The Court found that under Virginia Law a child was required to have been born within ten (10) months of the decedent’s death to be entitled to inheritance rights. Therefore, the Court in Schafer concluded that the child was not entitled to Social Security benefits.

Circumstances as presented by Schafer present unique problems for planning and settling an estate. A Last Will or Trust document can attempt to define all the participants and include in the definition persons born or conceived after the death of the decedent. However, it can be exceedingly difficult to fully cover every possible situation presented by the advances in today’s world. Probating a Last Will and administering an intestate estate can become very involved when unknown or unintended heirs become interested parties to these proceedings. In a recent New York case, In Re Martin B., decided by New York County Surrogate Renee R. Roth on July 30, 2007, children who were born years after a decedent’s death through the process of invitro fertilization were found to qualify as beneficiaries of a trust.

July 12, 2011

U.S. Supreme Court Rules in Stern v. Marshall Against Anna Nicole Smith’s Estate

by Jules M. Haas

In Stern v. Marshall, the U.S. Supreme Court recently ruled against the estate of Anna Nicole Smith, who had married a Texas oil tycoon 63 years her senior a year before he died, The New York Times reports.

What this case illustrates is the importance of hiring an experienced New York Probate Lawyer who can sort out any estate planning and trust issues in New York City or elsewhere that need to be finalized to ensure a smooth process for all involved.According to The Times, Smith, a former Playboy playmate and model whose real name was Vickie Lynn Marshall, had once received a bankruptcy court award of more than $400 million and asserted that J. Howard Marshall II’s son had wrongfully interfered with a gift she had expected from his father.

The majority of justices held unconstitutional a provision of the bankruptcy laws that authorized bankruptcy judges to hear some kinds of claims. The case rested on the idea of separation of powers in the context of bankruptcy.

The case illustrates the need to hire an experienced New York Probate Lawyer who is well-versed in New York Probate Law and who can help you sort through this complex area of law. When bankruptcy court is involved, it can be even more difficult to navigate.

Selecting an executor to handle your New York estate or will may be the most important decision you can make in handling your finances. Being an executor of an estate means being responsible for distributing assets as laid out in a will.

While many people would look at this as an honor to be trusted with a person’s assets once they die, it brings with it a great deal of responsibility and dedication. There are legal obligations to being an executor and executors often can use the advise and counsel of a New York Estate Lawyer in how to handle major issues on behalf of an estate.

Wills may be challenged and other problems may arise, so hiring an experienced law firm can help settle these types of issues. Some issues may be handled outside of court and others require court oversight.

Some people think that handling an estate or executing a Will is as simple as contacting family members and doling out cash and family heirlooms, but there is much more. And one of the things that frustrates and mystifies many people are taxes on an estate.

Estate tax issues arise on both the State and Federal level. There are ways to minimize Federal and New York Estate Tax. One way to save is through a “QTIP” trust, which enables surviving spouses to bypass paying estate taxes through the use of a tax credit. Lifetime gifts and charitable contributions are other ways. Trying to do it alone will leave complications for survivors that can turn family members against each other and leave an estate open to unnecessary tax implications. The New York Probate Lawyer Blog has previously discussed the recent changes that were enacted for the Federal Estate tax.

July 6, 2011

New York Beneficiary Designations Can Impact An Estate Plan

by Jules M. Haas

Planning a New York estate requires that all family beneficiary and asset information be obtained and thoroughly reviewed. Before considering the impact of estate or income taxes, a road-map should be created that provides for the concise disposition of assets to specifically named or identified beneficiaries. The New York Probate Lawyer Blog has previously discussed this issue.

A basic concept to always consider is that a Last Will controls the disposition of assets that are held in the name of a decedent. Thus, if a person dies owning a house or bank account in his or her individual name, the provisions of the Last Will determine how and to whom such asset will be distributed. However, many assets fall outside of this rule and their ultimate ownership will be determined differently. A jointly owned bank account or real property will automatically be owned solely by the surviving joint owner upon the death of the co-owner. Similarly, a designated beneficiary of a life insurance policy or retirement plan will receive these benefits upon the death of the insured or plan participant. In all these instances, the terms of the Last Will generally cannot override the rights of the designated beneficiary. The importance of coordinating Last Will provisions with the transfer provisions of other assets that pass automatically or by operation of law is imperative. The failure to provide for all such asset items can ruin an estate plan and cause hardship for intended beneficiaries during estate settlement.

An example of the perils encountered when not precisely reconciling all asset dispositions was recently shown in the case of Diversified Investment Advisors, Inc., v. Baruch, (EDNY) 09-CV-5377, reported in the New York Law Journal on June 29, 2011. In this Federal District Court case, the decedent died leaving an annuity that designated the decedent’s ex-wife as the beneficiary. The designation was made prior to their divorce. In the divorce proceedings, the ex-wife had signed a separation agreement in which the she had “waived” claims to the annuity. In view of the waiver, the decedent’s son, who was born by another woman, claimed that the annuity was payable to the decedent’s estate, and not to the ex-wife. The Hon. Jack B. Weinstein in a decision dated June 24, 2011, found that the waiver was “sufficiently precise and explicit” to allow it to meet the test of validity and that the annuity funds should be paid to the estate and not to the ex-spouse.

While not applicable to the facts of this case, the Court did comment upon New York Estates, Powers and Trusts Law section 5-1.4 that became effective July 7, 2008 which provides, in part, that “a divorce . . .revokes any revocable . . . disposition or appointment of property made by a divorced individual to . . . the former spouse, including . . . a. . . beneficiary designation . . . in a pension or retirement plan.”

As can be seen, stale or improper beneficiary designatons can disrupt the settlement of an estate that is otherwise well planned for purposes of property distribution and estate taxes. When preparing an estate plan it is always a good idea to review each asset owned, including bank accounts, real estate, life insurance and retirement accounts. Carefully ascertain the name or names in which the assets are held. Also, check to see the names of all designated beneficiaries and contingent beneficiaries. In the event any information is missing or unclear, especially with beneficiary designations, prepare and sign new beneficiary designation forms that state precisely the desired information.

I have represented many clients in preparing their estate plans. More often than not, clients encounter out-dated forms and directions that must be modified and updated to accomplish their planning goals and protect their families from unwanted confusion at the time of probate and estate administration.

June 29, 2011

Probate In New York Can Involve Unusual Circumstances

by Jules M. Haas

The proper execution or signing of a Last Will in New York requires that the formalities provided by statute be followed. The New York Probate Lawyer Blog has previously discussed these rules. The basic “formal requirements” for the signing and witnessing of a Will are set forth in Estates, Powers and Trusts Law section 3-2.1. Among other provisions, subsection (4) of the statute provides that “there shall be at least two attesting witnesses. . . .”

Thus, when a person dies and his or her Will is filed with the Surrogate’s Court for probate, two of the attesting witnesses “must be produced before the Court and examined before a Will is admitted to probate. . . .” Surrogate’s Court Procedure Act Section 1404(1).

In most uncontested matters an affidavit signed by the witnesses at the time of the Will execution will satisfy the requirements for examining the Will witnesses. This is the so-called self-proving Will. However, there are instances where a witness affidavit is not prepared at the Will signing or a Will contest requires actual live testimony of the witnesses.

Recently, Surrogate Edward W. McCarty III, of the Surrogate’s Court, Nassau County, was presented with a Will that was 19 years old and the petitioner was unable to provide witness affidavits or testimony since one witness was deceased and the other witness could not be located. In Will of Jean Santoro, decided on May 3, 2011 and reported in The New York Law Journal on June 3, 2011, the Surrogate noted that the decedent’s Will could not be admitted to probate as an “Ancient Document” since it was “less than 20 years old.”

However, the Court became aware that the attorney who drafted Jean Santoro’s Will, and who was one of the witnesses, had previously died and that his Will had previously been admitted to probate by the Court. Therefore, Surrogate McCarty ruled that since the deceased witness’ signature was already on file with the Court, the petitioner could obtain an expert opinion as to the signature as a witness to the Will in question. The Surrogate also provided that an affidavit from a relative as to the signature of the decedent, Jean Santoro, would help prove the Will’s genuiness.

The Santoro case illustrates that Courts generally favor finding the validity of a Will so as to carry out a person’s estate plan and preferences for the distribution of his or her property. The Santoro case also shows the importance of up-dating a Will so that the persons involved with its execution are available in the event their testimony is required. Additionally, proper estate planning involves a periodic review of Will and trust provisions and beneficiaries and the selection of executors and trustees.

As noted, it is common for Courts to validate Wills to further a person’s apparent testamentary desires. In a recent article by Arden Dale appearing in the Wealth Advisor on June 20, 2011 entitled California Court Gives ‘Rogue’ Wills More Validity, it was reported that a California court up-held a Will that was written by a decedent’s friend while the decedent dictated its term. While courts may tend to overlook minor errors and approve “informal Wills”, the article points out that “financial advisors still urge clients to get professional help if they want to change their estate plan.”