New York Probate Lawyer Blog

April 8, 2025

Did You Know That A Person Must Have Standing To File Objections To A New York Last Will and Testament

The New York Probate Lawyer Blog has published many articles concerning New York trusts and estates and the settlement of probate and intestate estates. When a person dies, a determination needs to be made as to whether he left a Last Will and Testament. If so, it is important to see whether the Will document is an original or a copy. This is because it is extremely difficult to probate a copy of a Will.

Surrogate’s Court Procedure Act (SCPA) section 1407 entitled “Proof of lost or destroyed will”, sets forth the requirements to prove a Will where the original cannot be located. The prevailing rule in New York is that if the original of a Will was known to be in the possession of a decedent at the time of death and the original cannot be found, there is a presumption that the Will was revoked by the decedent.

Assuming that an original Will is located, the document must be filed with the Surrogate’s Court for probate. The probate process in New York includes the filing of a Petition for Probate. The petition contains information regarding the names and addresses of a decedent’s next of kin (“distributees”), information regarding the Will provisions and also the value of the probate estate.

March 20, 2025

Insight Into Complexities Concerning The Appointment and Removal of Executors and Administrators

by Jules M. Haas

The appointment of an Executor or Administrator to represent a New York estate may, at first, seem rather simple. If a person dies without a Last Will and Testament the estate is inherited by the decedent’s next of kin, known as distributees. Pursuant to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, the persons who inherit are listed in the order of their kinship to the decedent, i.e. spouse, then children and so on.

Concomitant to this statute is Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting Letters of Administration”, which gives the same priority to heirs to be appointed as a decedent’s intestate estate Administrator. Problems arise regarding the actual appointment for numerous reasons. The New York Probate Lawyer Blog has published many articles concerning the appointment of New York estate fiduciaries. One major area of contention arises when there are multiple individuals who have an equal priority right to appointment who are competing against each other and contesting the other persons appointment. This circumstance often arises when a decedent’s children or brothers and sisters are seeking appointment. The Surrogate’s Court typically is called upon to resolve or rule on such disputes.

In a situation where a person dies leaving a Will, the document typically contains a provision nominating an Executor and usually one or more successor Executors. When this occurs, the nominated fiduciary has the priority to seek appointment as Executor.

March 4, 2025

New York Article 81 Guardianship: Some Interesting Aspects

by Jules M. Haas

Article 81 of the Mental Hygiene Law (MHL) provides the statutory provisions for adult Guardianship. Pursuant to this statute the Court is given the authority to appoint a Guardian for personal needs and/or property management. The New York Probate Lawyer Blog has published many articles regarding Guardianship as well as estate and trust issues.

As provided in MHL section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” a Guardian may be appointed if it is determined that a person is incapacitated. A finding of incapacity must be based upon clear and convincing evidence that a person will suffer harm because they cannot attend to their personal or property needs and they do not understand or appreciate their disability.

These cases are typically filed in the Supreme Court in the County where the alleged incapacitated person is located. So, if a person is hospitalized in Brooklyn or Manhattan, such County is where the matter will be filed. A Guardianship proceeding is commenced by filing a Verified Petition and an Order to Show Cause with the Court. The Petition sets forth all of the information regarding the alleged incapacitated person including the nature of his disability, assets, family and the circumstances requiring the need for the appointment. After reviewing all of the papers submitted, the Court will sign an Order to Show Cause which contains the date, place and time of the hearing. It also contains the name of the persons appointed by the Court to act as Court Evaluator and Counsel for the alleged incapacitated person.

February 21, 2025

A No Contest Clause Cannot Prevent A Beneficiary From Seeking A Fiduciary Accounting

by Jules M. Haas

Estate planning in New York is important. It is the method by which a person can specify the manner by which assets can be distributed upon death or other situations. Documents which are typically associated with estate planning include a Last Will and Testament and a Living or Grantor Trust. Also, papers such as a Power of Attorney, Health Care Proxy and Living Will which are advance directives are usually associated with the estate planning process. The New York Probate Lawyer Blog has published many articles concerning estate planning.

A Will and Trust document typically contains various provisions concerning the disposition of assets and the designation of beneficiaries. The papers also contain designations of fiduciaries such as executors or trustees. Other terms may include fiduciary powers and clauses dealing with the payment of taxes.

In certain situations, a person may be concerned about whether assets should be disposed of by a Will or whether to use a revocable or living trust to avoid probate. There are various considerations on this topic. For example, a trust may be preferred in the event a person’s kinship is unclear and the goal is to avoid a kinship hearing in a Surrogate’s Court probate proceeding. Also, probate may need to be avoided if it is anticipated that there may be a Will Contest in the probate proceeding.

February 14, 2025

A Beneficiary May Be Required to Refund a Distribution Received From an Executor or Trustee

by Jules M. Haas

One aspect of estate settlement is the actual distribution of funds or other items to the ultimate beneficiaries of an estate or trust. As explained in many prior articles in the New York Probate Lawyer Blog there are three main categories involved in administering an estate. Briefly, the first stage involves the appointment of an estate fiduciary such as an executor or administrator. An Executor is appointed when a decedent dies leaving a Last Will and Testament. An Administrator is appointed when a decedent dies intestate without a Last Will.

The second phase of an estate is implementing administrative tasks such as collecting assets, paying debts, taxes and other obligations and finalizing the various aspects of a decedent’s affairs. This would also include selling a decedent’s house or other property, if necessary.

The third and final chapter involves the payment or distribution of assets. Such disposition will be controlled by the terms of a Will or is made in accordance with the statutory estate laws regarding intestate inheritance.

February 11, 2025

The New York Probate of a Lost Will is Always Problematic

by Jules M. Haas

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.

January 31, 2025

Probate of a New York Will May Involve an Ancient Document

by Jules M. Haas

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.

January 15, 2025

Probate of a New York Will by Summary Judgment

by Jules M. Haas

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.

January 2, 2025

The New York Surrogate’s Court May Revoke the Appointment of an Executor or Administrator

by Jules M. Haas

In order to effectively handle a decedent’s estate, an executor or administrator needs to be appointed. The New York Probate Lawyer Blog has published many articles regarding the appointment of fiduciaries such as administrators, trustees, and executors.

Where a person dies with a Last Will and Testament, it is necessary to go through the probate process in the Surrogate’s Court to obtain the appointment of an executor. This requires the filing of a petition for probate along with numerous additional documents containing essential information. When a Will is admitted to probate, the nominated executor receives Letters Testamentary.

In situations where a person dies intestate without leaving a Will, a Petition for Letters of Administration is filed with the Surrogate’s Court. The persons entitled to receive Letters of Administration are typically a decedent’s closest heirs, referred to as distributees. Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” provides the order of priority for issuance of administration letters.

December 19, 2024

New York Estate Planning and the Probate Process

by Jules M. Haas

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.