A Probate Proceeding is just one of the many types of proceedings that can be commenced in the New York Surrogate’s Court. Other types of matters include Administration, Kinship and Accounting Proceedings.
Each type of matter has its own particular set of rules and procedures which are typically found in the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.The New York Probate Lawyer Blog has discussed the requirement that all interested parties must be made parties to a Court matter. For example, it is necessary when a Last Will is being offered for probate that all of the decedent’s distributees (next of kin) be properly served with a notice of the proceeding. The paper that is issued by the Court that must be served is known as a Citation. Of course, if the decedent’s next of kin do not object to the probate of the Will, they can sign a form of Waiver and avoid the need for a Citation to be issued and delivered to them.
The Citation contains language that tells the parties that they should appear in the Surrogate’s Court on a particular date at a set time and advise the Court if they have any objection to the validity of the decedent’s Will. If the party receiving the Citation fails to appear, he is deemed to have defaulted and forfeited his right to file Objections to the Will.
The probate petition that is filed with the Court must contain the names and addresses of the decedent’s next of kin and other persons who have an interest in the matter. This way the Court knows the identity of the persons who have a right to be made a part of the Court case. If all of the names are not properly given to the Court or any of the named parties do not receive proper notice of the case, there cannot be a valid adjudication of the Will.
A recent case decided by Nassau Surrogate Edward McCarty III on March 31, 2015 entitled Estate of Benoit, shows the importance of properly completing the service of Citation procedures. In Benoit, the surviving spouse of a decedent claimed that he did not receive a copy of the Probate Citation. Since the Court record indicated that a copy of a Citation had been mailed to the spouse in Haiti and no objections had been filed, the Court granted a Decree admitting the Will to Probate. The decedent’s brother was appointed as Executor. The spouse, however, claimed that he did not actually receive a copy of the Citation and petitioned the Court to vacate the Decree. The Surrogate reviewed the facts presented which indicated that the address where the Citation had been mailed to the spouse was not the spouse’s address or residence. In order to resolve this matter, the Surrogate directed that a hearing be held at which time evidence would be presented regarding the spouse’s actual address and the proper mailing of the Citation.
As can be seen from Benoit it is important to follow and satisfy the Court procedures to properly probate a Will. I have represented many clients regarding the probate of a Will and have assisted them with preparing all needed papers and complying with Court protocols. If you have any questions regarding a Probate matter or other Surrogate’s Court proceedings, call me now for a free review of your issue.
New York Trust and Estate attorney Jules Martin Haas, Esq. has been representing clients in Surrogate’s Court and estate administration in Manhattan, Queens and Brooklyn throughout the past 30 years. If you or someone you know is involved with or has questions about Estate Settlement, please contact me at (212) 355-2575 for an initial consultation.
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