Articles Posted in Probate

Probate-300x201A Last Will and Testament is a document meant to memorialize a person’s intentions regarding the disposition of his property after death.  The various rules and statutes relating to the probate process are typically strictly adhered to by the Surrogate’s Court.  This is because if there are any variations or discrepancies, a decedent is no longer around to explain what was intended.  The Surrogate’s Court is the place where most Wills are filed to commence probate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will as well as other topics, such as intestate distribution and estate settlement.  As many of these articles discuss, the process is commenced by filing a Petition for Probate with the Court and seeking the granting of Letters Testamentary.  The Petition contains a fair amount of information, including the name and address of the petitioner, the decedent’s next of kin (“distributees”) and Will beneficiaries.  Information is also provided regarding the date of the Will, the names of the Will attesting witnesses and the estimated value of the probate estate.

For the most part, the distributees have a right to challenge or contest a Will.  If the document is determined to be invalid, and the decedent is found to have died without a Will, the estate is distributed to the intestate heirs.

When a person dies, one of the initial issues is whether the individual had a Last Will and Testament.  This determination is important because the existence of a Will provides the roadmap for the administration and distribution of a decedent’s estate.  In cases where there is no Will, a person is said to have died intestate and his estate will be distributed according to the intestacy statutes.  Estates, Powers and Trusts Law Section 4-1.1 entitled “Decent and distribution of a decedent’s estate” provides the priority of family members who are entitled to receive estate assets.

Where a Will exists, the document sets forth the manner in which the estate assets are to be distributed.  It also designates the persons who are to act as estate executors and trustees.  The Will provisions may include the creation of a testamentary trust and there may be various bequests and dispositions of real estate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will.  A will becomes valid after it is admitted to probate.  The probate process includes the filing with the Surrogate’s Court of various documents including a probate petition, the original Will, and a death certificate.  Sometimes family members may object to a Will and initiate a Will Contest.

Probate-300x201Probating a Last Will and Testament in New York requires that the Court be satisfied that the Will complies with all the statutory and Court-mandated requirements.  The primary source of reference is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the manner in which a Will must be signed.  For example, the statute says that the Will needs to be signed by the testator at the end of the document.  There is also a requirement that there shall be at least two (2) attesting witnesses who must verify that the testator signed the Will in their presence.  The New York Probate Lawyer Blog has many articles concerning issues that may arise with regard to the execution of a Will and estate settlement.  In most instances, a Will is prepared by an attorney.  It is also usually signed by a testator and witnesses under the supervision of an attorney.  In these cases, there is a presumption that the requirements of the statute regarding proper execution were adhered to.

When someone wishes to contest a New York Will, there are typically a number of grounds which are asserted.  Lack of due execution is one ground, as well as lack of testamentary capacity, undue influence and fraud.  Forgery may also be alleged.  During the probate proceeding, all interested parties are given notice regarding the probate case in Surrogate’s Court.  This allows the parties to file objections to a Will and also to engage in pre-objection disclosure provided by Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined, proof required.”

This blog recently discussed a situation where a person failed to timely assert rights and then sought to vacate a decree admitting a Will to probate.  Such a situation recently was the subject of a Queens estate case entitled Estate of Cunningham, decided by Queens Surrogate Peter J. Kelly on June 27, 2023.  In Cunningham, although objections to the Will were filed, the objectant failed to oppose a motion for summary judgment which sought to dismiss the objections.  After the motion was granted and a decree admitting the Will to probate was issued, the objectant tried to vacate the decree.

Probate-2-300x200When a person dies and leaves a Last Will and Testament, the next step is to commence a proceeding to probate the Will.  The probate process can be very complicated.  In the first instance, it is important to locate the original of the Last Will and Testament.  When the original document cannot be located and only a copy is available, it is very difficult to complete probate.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be complied with.  One of the biggest hurdles to overcome is that if the original of the Will was known to have been in the possession of the decedent and cannot be found, then the presumption is that the original Will was revoked.

The probating of a Will in Surrogate’s Court requires that all of the decedent’s next of kin, known as distributees, be notified concerning the Court case.  The reason for such notification is to afford the distributees the opportunity to contest the Will.  In many cases, a distributee agrees to sign a Waiver form consenting to the probate of a Will and the appointment of an executor.  When a Waiver form is not obtained, a proponent of the Will needs to have the Court issue a Citation directed to the non-waiving party.  A Citation is like a summons.  It must be served on a distributee.  The citation has a Court date on which the distributee must appear and tell the Court whether objections to the Will are going to be filed.  If the distributee fails to appear or notify the Surrogate’s Court on the return date, then there is deemed to be a default and the Will is admitted to probate.

When a party defaults in a probate case, it is possible to ask the Court to vacate the default if sufficient reasons are presented.  This situation recently occurred in a Manhattan estate entitled Estate of Frank.  In a decision dated May 25, 2023, Manhattan Surrogate Hilary Gingold granted an application to vacate a probate decree.  It seems that the mother and sole distributee of the decedent had been hospitalized due to an injury which occurred shortly after being served with a Citation.  The injury caused the distributee to be cognitively impaired.

Probate-2-300x200Estate planning in New York can include the preparation of a number of documents.  A person may create a Last Will and Testament, a Power of Attorney, a Living Will, a Living or Grantor Trust and a Health Care Proxy.

The most basic paper which should be considered is the Last Will.  This is the document which sets forth the testator’s intentions regarding the disposition of the probate estate.  It should always be kept in mind that a Will controls the disposition of assets held in a decedent’s name alone.  Assets which are transferred by operation of law such as joint assets are not controlled by the Will provisions.  The same concept applies to items such as life insurance or retirement accounts which may be paid on death to designated beneficiaries.

The New York Probate Lawyer Blog has published many articles regarding the preparation and probate of Wills.  There have been numerous blog posts concerning the statutory requirements for signing a Will.  These requirements are contained in Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”

Probate-300x201It takes a lot of time and effort to create a New York estate plan.  A testator needs to fully access his assets and make decisions regarding the provisions to include in a Last Will and Testament.  It is important to determine who is to be a beneficiary as well as the portion of the estate each beneficiary is to receive.  Also, executors must be identified and alternative provisions should be included in the event a primary beneficiary predeceases the testator.

Once a person dies, a Will must be probated.  A proceeding is filed in the Surrogate’s Court to have the Will validated so that its provisions become effective.  During the course of the probate proceeding, interested parties may object to the probate of a Will.  In such a case, a Will Contest ensues.  A contested Will case involves specific aspects concerning a Will’s viability.  The New York Probate Lawyer Blog contains many articles regarding probate and Will Contests.

A recent Brooklyn estate case entitled Matter of Grunwald decided by Brooklyn Surrogate Rosemarie Montalbano concerned a contested Will.  In Grunwald, the Will in question was prepared and executed under the supervision of an attorney.  The Court examined various issues surrounding admitting the Will to Probate.  Initially, the Court examined whether the decedent had the requisite testamentary capacity.  Such capacity requires that the testator understood that he was creating a Will as well as being aware of the extent of the testator’s property and the natural objects of his bounty.  Although a person may be old or even suffering from illness such as dementia, capacity may still exist.  The Court in Grunwald found that the testimony of the attorney and attesting witness satisfied the burden of showing capacity.  The Court found that the Objectant did not refute such finding.

rendered-300x107The probate process in New York is comprised of a number of stages.  At the outset, the original Last Will and Testament of a decedent must be located.  This is not always as easy as it seems.  In some cases, only a copy of a Will is found.  When this happens, a search is necessary to locate the original document.  This is because a copy of a Last Will must meet a rigorous test to be admitted to probate.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed Will” provides the rules regarding admitting a lost or destroyed will to probate.  The main impediment in these cases is that when an original Will is known to have been in the possession of a decedent, and it cannot be found, there is a presumption that it was revoked by the decedent.

The next stage is filing a probate petition and a Will with the Court to commence the probate case.  Once all of the necessary papers are filed, all of the interested parties must be notified about the proceeding.  Typically a Probate Citation is served on parties who do not sign Waiver and Consent forms to probate.  At this stage, interested parties may have a right to object to the probate of the Will.  Issues may arise as to whether an interested party has standing or the right to file objections.

SCPA 1410 entitled “Who may file objections to probate of an alleged will” sets forth the criteria regarding a person’s right to object.  In short, someone must have a pecuniary interest that will be enhanced if a Will is denied probate.  The statute requires that there be an adverse effect due to the probate of a Will.

shutterstock_94407685-300x200A lot of time and effort may be expended with regard to creating an estate plan.  Documents such as a Last Will and Testament, Living Trust, Health Care Proxy, and Power of Attorney require that the creator consider the various provisions and persons to be named as beneficiaries, agents or fiduciaries.  Additionally, the papers must be executed in a manner so that they are to be effective when needed.

With regard to a Will, execution requirements are delineated in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  The New York Probate Lawyer Blog has published many articles discussing the various aspects of Will execution along with issues such as probate and Will contests.

After a Will has been effectively executed, it may be necessary to have it changed or revoked.  Additionally, after the death of a decedent, issues may arise as to whether the Will was revoked and, therefore, should not be admitted to probate.  There are some provisions in the New York estate laws which deal with these matters.  EPTL 3-4.1 entitled “Revocation of wills; effect on codicils” provides a number of rules.  The statute begins a by providing that a Will can be revoked or altered, provided a testator intends to do so, by the execution of another Will.  There is also a provision which provides that a revocation can occur through acts such as tearing, burning, obliteration or mutilation.

shutterstock_571088005-300x200In order for a Last Will and Testament to be admitted to Probate, the Surrogate’s Court must be presented with all of the papers needed to satisfy the requirements of the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.  The document which initiates the probate process is the Petition for Probate.  This paper contains detailed information regarding the decedent, the Last Will, an estimate of the estate value, the names and addresses of the decedent’s distributees and the persons named in the Will.

The New York Probate Lawyer Blog has published many articles concerning the requirements for probating a Will.  EPTL Section 3-2.1 entitled “Execution and attestation of wills” sets forth the mandated requirements for the due execution of a Will.  Prior to the COVID pandemic, the execution of a Will prepared and supervised by an attorney was a relatively straightforward process.  In short, the attorney, the attesting witnesses and the testator would gather together and have the various signatures applied along with a notary for a witness affidavit.  However, due to COVID this social interaction was prevented and New York passed certain legislation which allowed for remote execution of Wills.  However, the remedial statute presented explicit guidelines which, if not complied with, may compromise the validity of the Will.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on February 23, 2022 entitled Estate of Holmgren dealt with the probate of a COVID rule Will.  In Holmgren, the Court reviewed New York Executive Order (202.14) which allowed remote execution.  This Order, as found by the Court, did not replace the requirements of 3-2.1.  Instead, the Court noted that the Order allowed the “use of audiovisual technology to satisfy the ‘presence’ requirements contained in the statute.”  The Surrogate went on to review in detail the various rules in the Order which needed to be followed to allow a COVID-type Will execution to form a basis for admitting a Will to probate.

Probate-300x201A Last Will and Testament in New York must be admitted to Probate in order for it to become effective.  The probate process involves the filing of a petition with the Surrogate’s Court along with additional documents.  Persons who are identified as distributees (the decedent’s next of kin) must be notified.  This is typically accomplished through the service of a Court issued Citation.  Distributees have a right to contest a Will.  The New York Probate Lawyers Blog has published many articles concerning the probate and administration of estates and contesting a Will.

Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the requirements for the proper execution of a Will.  In cases where the statutory steps are not complied with, an objection to a Will can be filed based upon lack of due execution.  For instance, two attesting witnesses are required.  If there are not two witnesses, a Will can be denied probate.

Other grounds for a contested Will include lack of testamentary capacity and undue influence.  While it may seem initially that a Will that is attorney supervised and executed in accordance with the estate law should result in a simple rejection of objections by a Court, that is not always the case.

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