Estate Attorneys in New York are familiar with the process by which a Last Will is admitted to probate. Probating a Will essentially involves presenting the Will to the Court for review and having the Court determine that the Will is valid. Once the validity of the Will is established by the Court, an executor is given the authority to carry out the provision of the document.
The probate procedures are set forth in the New York Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act. The first step is to prepare a petition which contains information regarding the petitioner, the decedent, the Will and the decedent's assets. The person named in the Will as the Executor is usually the one that prepares the petition. The probate petition must also contain the name and address of the decedent's distributees (i.e., next of kin). These are the parties, such as a decedent's spouse, children, parents or more distant relations, who have a right to object to the Will. Such objections would result in a Will contest.
Typically, the distributees will be given an opportunity to sign a Waiver form by which they can indicate that they have no objection to the Will. If a waiver is not signed, the distributees must be served with a Citation. A Citation is like a Summons, which is issued by the Surrogate's Court and advises the party served to appear in Court on a certain date to essentially tell the Court that the Will should be invalidated. The objecting party is then provided with the opportunity to obtain discovery of relevant documents and to take the testimony of witnesses such as the attorney who drafted the Will and the persons who witnessed the Will signing.
In most cases, the Citation is personally served on or delivered to the party to whom it is directed. However, there are occasions when the decedent's distributees are either unknown or unable to be located. These cases require that the Citation be served in a different manner. When a distributee is unknown or their whereabouts cannot be determined the Court will require that an affidavit and relevant information be provided demonstrating that a full and diligent search has been performed to identify and/or locate the distributee. Once the Court is satisfied that the due diligence requirement is met, then the Court may allow the Citation to be served by publication in a newspaper in the locality having the greatest chance of being seen by the distributee. In an interesting recent case entitled Last Will of Gladys Maynard decided by Nassau Surrogate Edward W. McCarty III on October 31, 2013 and reported in the New York Law Journal on December 5, 2013, there was an issue regarding the validity of the publication of a Citation. The Court had directed that the Citation be published in a certain newspaper and the attorney for the petitioner requested that the publisher insert the Citation as directed. Unbeknownst to the Court or the attorney, the designated paper was no longer published so the publisher inserted the Citation in a newspaper that had replaced the discontinued paper. The Court found that the publication of the Citation in the different newspaper was a mere irregularity and not sufficient enough to invalidate the service for jurisdictional purposes.
New York Trusts and Estates attorneys regularly deal with issues regarding the service of Citations, affidavits of due diligence and kinship matters. I have represented many clients who were faced with resolving these issues in estate settlement.