The New York Probate of a Last Will can be relatively smooth depending upon many factors. Of course, everyone has heard stories of feuds over a decedent’s estate and Will Contests that are both lengthy and costly. However, for the most part, the probating of a Will is not controversial.
Essentially, the probate process is the validating of the Will by the Court so that the terms of a Will regarding the disposition of the estate are authorized by the Surrogate’s Court. The Executors or Trustees who may be named in the Will are issued Letters Testamentary or Letters of Trusteeship by the Court. These fiduciaries are then empowered to handle estate or trust affairs.
The Probate Proceeding requires the filing of a petition with the Court along with other papers such as affidavits from attesting witnesses and possibly Waives and Consents from other interested parties. Sometimes, the Court must issue a Citation to be served on interested parties who do not voluntarily consent to the probate of the Will. The Surrogate’s Court Citation is like a Summons and provides a Court date for the parties to appear in Court and advise the Court as to their intentions. The Citation is served on the parties either personally or sometimes by mail.
The New York Probate Lawyer Blog has provided many posts regarding various aspects of probate. The preparation of a clear and complete estate plan which includes a Last Will is the first and, maybe, the most important step in facilitating an easy probate proceeding. Problems often arise when a decedent’s Will has provisions that are unclear or ambiguous. The execution of a number of different Wills over a short period of time where beneficiary shares are drastically changed also leads to post-death disputes and Will Objections based upon lack of testamentary capacity and undue influence.
Of course, there is no guaranteed method of leaving a Last Will and avoiding a potential Will Contest or Estate Litigation. There are, however, some strategies that can lessen the likelihood of fighting. Many Wills contain an In Terrorem Clause or no-contest clause that provides that anyone who attempts to challenge the validity of the Will is to forfeit their inheritance if they are unsuccessful. Also, the creation of a Living Trust can avoid the probate process entirely although these trusts are subject to Court challenge.
The Estates, Powers and Trusts Law and Surrogate’s Court Procedure Act provide many provisions regarding the creation, execution and interpretation of Wills and the procedures to probate and challenge a testamentary document such as a Will.
Experienced New York Estate Lawyers are familiar with the laws regarding estate administration. It is essential that persons who are nominated as Executors in a Will or beneficiaries or other interested persons obtain advice as to the steps to follow in a probate matter and the likelihood that they may or may not be successful regarding their desired outcome.
New York City estate attorney Jules Martin Haas, Esq. has been representing clients in Probate and Estate Administration proceedings throughout the past 30 years. I have represented clients in many counties including Suffolk and Westchester Counties. If you or someone you know is involved with or has questions about a Last Will or other aspects of Probate or Estate Administration, please contact me at (212) 355-2575 for an initial consultation.