Articles Posted in Probate

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.

Probate-2-300x200When a person dies and leaves a Last Will and Testament, the validity of the document is subject to the probate process.  The estate laws and procedures provide that a probate proceeding be commenced in Surrogate’s Court.  Proceedings for the probate of a Will require that all of a decedent’s next of kin, referred to as distributees, must be provided with notice of the pending case.

In order to obtain Court jurisdiction over distributees, one of two things must occur.  Either a distributee voluntarily appears and oftentimes consents to the probate of the Will, or alternatively, the distributee must be served with a Citation which directs the distributee to appear in Surrogate’s Court and state why the Will should be objected to and denied probate.

Objecting to a Will or a Will contest involves different aspects of investigation.  A recent Queens estate case entitled Matter of Logan, decided by Queens Surrogate Peter Kelly on July 26, 2021, provides an insight into these areas of examination.  In Logan, the Court found that the Will was prepared by an attorney who also supervised the execution of the Will.  Due to these facts, the Court noted that a presumption arose that the Will was duly executed.  Execution of a Will must comply with Estates, Powers and Trusts Law Section 3-2.1, entitled “Execution and attestation of wills; formal requirements.”  The Surrogate pointed out that since the Will also contained an attestation clause and a self-proving affidavit signed by the Will witnesses, a further presumption of due execution existed.

Probate-300x201Preparing a New York Last Will is essential in order to dispose of assets in an orderly manner.  A Will allows a testator to provide for bequests and devises of his personal property and real estate interests according to his intentions and desires.

Beneficiaries can be named and each one designated with an appropriate estate share.  The beneficiaries can be family members, friends or institutions such as charities.  Also, the dispositions can be outright or through a testamentary trust which may provide long term or specific oversight.  Executors can be selected as well as trustees and guardians for minor children.

Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” sets forth the requirements for Will execution.  The legal mandates such as the need for two witnesses and the publication of the document must be followed with precision or the validity of the Will may be placed at risk.  The New York Probate Lawyer Blog contains numerous articles regarding Surrogate’s Court litigation and Will contests.

Probate-300x201It is well known that writing an estate plan is essential to have an effectual distribution of assets at death.  A lot of time and effort can be expended creating a Last Will, Living Will, Health Care Proxy and Power of Attorney that reflect a person’s desires and intentions.  The New York Probate Lawyer Blog has published numerous articles examining the planning of estates.

Additionally, it should be recognized that in order for a Last Will to be put into effect, the Will must be validated through the probate process.  This process requires that the Will be filed with the Surrogate’s Court and subjected to the review and procedures mandated by the Surrogate’s Court Procedure Act and the Estates, Powers and Trusts Law.  One of the most essential aspects involved with probating a Will is the necessity to provide the proper notice to a decedent’s next of kin or distributees.  This requirement has been reviewed on many occasions in this blog and it is important to bear in mind.  A decedent’s next of kin must be given notice because they have a right to contest the Will.  In many cases if the purported Will is found to be invalid, the distributees are entitled to receive an intestate share of the estate which may be much greater than their interest under the Will.

The usual course of a probate case involves the issuance of a Citation by the Surrogate’s Court.  A Citation is like a Summons and informs the parties to whom it is directed to appear in Court on a date certain and provide any Objections to the Will.  The Citation must be served on the distributees in a manner provided by the statutes and Court directions.  Once proper service of the Citation occurs, the Court has jurisdiction to hear and rule regarding probate.

Probate-2-300x200A Last Will and Testament in New York must comply with the basic statutory requirements provided by the estate laws.  The primary statute regarding the fundamental aspects of Will preparation and execution is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.

According to the statute, a Will is to be in writing, the testator is to sign at the end, and there must be at least two witnesses attesting to the signing.  The New York Probate Lawyer Blog has published numerous articles discussing the requirements for the due execution of a Will and different issues that might arise, particularly in the context of a Will contest.  In order for a Will to be admitted to probate, there must be a determination in the Surrogate’s Court that the document was duly executed.

The recent occurrence of the COVID-19 virus has made the ordinary execution of a Will difficult at times.  In the past, once an individual was ready to sign a Will, he or she would gather, usually in an attorney’s office along, with the witnesses and the signing ceremony would be conducted.  However, the COVID situation has created certain obstacles to the normal procedures due to lockdowns and social distancing.  A recent Orange County estate case decided by Orange County Surrogate Timothy McElduff, Jr. on December 7, 2020 entitled Matter of Estate of Bowen demonstrates the type of problems that the COVID pandemic can produce.

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