Articles Posted in Probate

When a person dies and leaves a Last Will and Testament, it is necessary to commence a probate proceeding to have the Will validated.   Probate in New York requires that various documents be filed with the Surrogate’s Court.  The original of the Will needs to be provided along with an original death certificate.   The petitioner is typically the person named as the Executor in the Will.  A Probate Petition is prepared which contains information including the date of the Will, the names of the attesting witnesses, the estimated value of the estate and the names and addresses of all parties interested in the matter.  These parties include the decedent’s distributees (next of kin) and the beneficiaries named in the Will.

There are many situations that may delay admitting a Will to probate.  One common occurrence is a Will Contest.  If the decedent’s distributees file Objections to the Will, then estate litigation associated with a Contested Will can delay final probate for a year or more.

Another delay may result where it is difficult to identify or locate the decedent’s distributees.  If a due diligence search needs to be completed before probate, there may be a delay for many months.  The New York Probate Lawyer Blog has posted many articles concerning Kinship, Probate and Will Contests.

When a person dies and the initial steps are taken to administer his estate, one of the first issues to be resolved is the domicile of the decedent.  Domicile is an interesting topic and the determination of domicile can be very complicated.  Essentially, it is the place where a person maintains a permanent and principal home to which he intends to return.  A person may have many residences but only one place of domicile.

For many aspects of estate administration domicile will determine which state’s laws apply to a decedent.  This determination can affect the rights of the various parties who have an interest in the estate and also which local tax laws can be applied.   An example is when a New York domiciliary dies, his Will is typically probated in New York and the New York estate and probate laws are looked to regarding estate administration.

Estate litigation can arise when an individual’s domicile is unclear.  While this issue can be determined by examining many factors such as where the decedent filed his local taxes or had a driver’s license, or the number of days per year spent in a certain state, the ultimate determination can be time consuming.  New York Estate lawyers deal with such matters regularly.

Probating a Will in New York can involve many complex procedures. A person typically prepares an estate plan and executes a Last Will so that his intentions regarding the disposition of his estate can be clearly set forth. Since the validity of a Last Will is extremely important, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides strict guidelines for executing a Will. The need for signatures, witnesses and other statutory and legal requirements are all intended to safeguard the Will execution process.

The New York Probate Lawyer Blog has posted many articles concerning probate. When a Will is filed with the Surrogate’s Court for probate, there are many other papers that need to be provided to the Court such as witness affidavits. Also, the decedent’s next of kin must be identified and given the opportunity to object to the Will. A New York City Probate Lawyer is familiar with these requirements. Continue reading

Last Wills are part of estate planning. The contents of the Will contains numerous provisions dealing with the distribution of estate assets. There can be pecuniary bequests which provide for a definite amount of money to be given to a beneficiary. There can also exist residuary provisions that direct the manner in which the balance of an estate is to be disposed of.

One of the most important provisions in a Will is the language that is concerned with the appointment of an Executor. The Executor is the person who is responsible for administering the probate estate. After a Will is admitted to probate, the Court issues letters testamentary to the nominated Executor. The nomination of an executor in a Will is essential. Continue reading

An estate executor or administrator has many obligations with regard to an estate.  The New York Probate Lawyer Blog has discussed in many posts the various powers that an estate fiduciary can exercise.  These powers include the right to collect assets and pay expenses.

However, in addition to the powers to be used to administer an estate, a fiduciary is responsible for various fiduciary duties. For example, an executor has a duty to treat estate fiduciaries fairly. Also, the executor owes a duty of loyalty to the estate and cannot engage in acts considered to be self-dealing. Such conduct might involve taking advantage of the estate to further the fiduciary’s personal interest. For example, New York City estate lawyers are aware that it would be improper for a fiduciary to purchase an estate asset for a price below the fair market value. When an administrator or executor acts improperly, such conduct is viewed as a breach of fiduciary duty. Continue reading

Probate of a Will in New York is primarily controlled by the various estate laws. These statutes are part of the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).   The probate process has been examined in many of the articles appearing in the New York Probate Lawyer Blog. When a person dies and leaves a Last Will, a petition for the probate of the Will is filed in the Surrogate’s Court. The petition contains information regarding the decedent, his address, the name of the petitioner, the date of the Will, the names of the attesting witnesses to the Will, the approximate value of the estate and the names and addresses of the persons interested in the estate.

The petition is filed with the Court along with an original death certificate, the original Will and other mandated documents. Kinship affidavits may also be required. Continue reading

An estate in New York requires the appointment of a fiduciary. Executors or Administrators are the fiduciaries who control estate settlement. Executors are appointed when there is a Last Will to be probated. Administrators are appointed when a person dies intestate (without a Will).

There are many instances when the initial probate proceeding or administration proceeding cannot be completed without extensive delays. A very common example of such a situation involving a delay is a Will Contest. When a Probate Petition is filed with the Surrogate’s the estate laws require that notice be given to the decedent’s next of kin. The New York Probate Lawyer Blog has published many posts regarding the probate procedures and the notices that must be given to family members. This notice is typically in a form called a Probate Citation. Continue reading

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. Continue reading

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.

Continue reading

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.

Continue reading

Contact Information