Articles Posted in Probate

The 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Will is known to have been in the possession of a decedent, and it cannot be found, there is a presumption that it was revoked by the decedent.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.

A 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.

A 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.

When 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.

Preparing 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.

It 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.

A 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.

It is an important role of estate planning to prepare a Last Will and Testament.  This document allows a testator to set forth in various provisions his desires as to the disposition of his estate.  Once a Will is admitted to probate, the terms become validated and the testator’s estate plan is effectuated.  It is then subject to being finalized by the executor settling the estate.

As has been discussed in a number of articles in the New York Probate Lawyer Blog, that the Surrogate’s Court requires that the original Will be filed as part of the petition for probate.  The Court needs to see the original signatures of the testator and the attesting witnesses, as well as the Will provisions.  Unfortunately, it is a common occurrence that after a testator dies, the original Will cannot be located.  Instead, usually a copy of a Will is found.  In these circumstances, Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be referred to in order to resolve the issue regarding the probate of the copy.

A recent decision in a Manhattan estate case provides a good example of the issues presented in these types of cases.  Estate of Rothberg was decided by Manhattan Surrogate Rita Mella on September 25, 2020.  In Rothberg, the decedent’s son petitioned to probate a lost Will.  He was the sole residuary beneficiary and the named executor.  The proceeding was uncontested.  Apparently, after the decedent’s death, the petitioner-son received the original Will from the decedent’s attorney.  However, prior to filing it with the Court, the son lost the original.  There is a presumption that a Will that cannot be located after death was destroyed by a decedent with an intention to revoke it.  However, the Court in Rothberg noted that such presumption does not exist if the attorney had possession of the Will.