Mere Delay in Prosecuting a Probate Proceeding May Not Result in a Dismissal


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.

It is very common that after someone commences a probate proceeding, the Surrogate’s Court requests that additional documents or explanations be provided before a Will is admitted to probate.  This was the situation in a recent Staten Island estate case entitled In the Matter of the Estate of Dolores Grillo decided by Richmond County Surrogate Matthew J. Titone on July 11, 2023.  In Grillo, a person had filed a petition for the probate of a Will in June 2021.  Apparently, shortly thereafter, the Court had sent a notice to the petitioner’s attorney requesting additional information.  This notice was not responded to.  Thereafter, in 2023, another interested party filed an application with the Court to have the probate proceeding dismissed due to failure to prosecute.  In response, the petitioner filed papers to complete the file as requested and also submitted an affidavit which stated that the delay was due to the attorney’s belief that the requested information had been supplied.

The Surrogate denied the application to dismiss the probate petition.  The Court recognized that the decedent’s intentions as expressed in a Will are important and should not be summarily dismissed.  Also, the Court found that the explanation for the delay was reasonable and did not involve a course of conduct to delay or obstruct the proceedings.

As shown by Grillo, probate proceedings require that the Court be provided with required information to support the validity of a Will.  I have represented clients in probate and other Surrogate’s Court matters for over forty (40) years.  Do you have a question regarding an estate?  Call Me Now for a free confidential review of your estate matter.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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