Estate 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.”
When a Will is presented for probate to the Surrogate’s Court, the Court reviews the document and the supporting papers to insure that the statutory formalities have been satisfied. The items typically filed with the Court include a probate petition, death certificate, Will and affidavits from attesting witnesses.
At the time a Will is signed, special attention should be given to the rules set forth in EPTL 3-2.1. For example, the Will needs to be signed at the end of the document and there should be at least two (2) witnesses. All signatories should sign at the same time and in each other’s presence.
A decedent’s next of kin (distributees) have a right to contest a Will. The grounds for a Will contest typically include lack of due execution, undue influence, or lack of testamentary capacity. Sometimes fraud, duress or forgery are also claimed as a basis to invalidate a Will. When a Will is prepared by an attorney and the execution ceremony is supervised by an attorney, there are presumptions of validity which favor the admission of a Will to probate. However, slight deviations from the statutory format may create issues of fact which can cause extensive Surrogate’s Court litigation in a contested Will proceeding.
A recent Staten Island estate case involved a Will contest. In Estate of Rock, the petitioner sought to have various objections to a Will dismissed before trial. The Court refused to summarily dismiss the objections to probate. Richmond County Surrogate Matthew J. Titone, in a decision dated February 27, 2023, found that issues existed because the decedent did not appear to have declared the document to be his Will or request that the witnesses sign the document. Additionally, the Court found that there was insufficient evidence to show that the decedent had testamentary capacity.
Probating a Will in New York can be very complicated. The assistance of an experienced Will and probate attorney can be essential to have a Will admitted to probate. I have represented parties in Will contests and probate cases throughout New York for over forty (40) years. Do you have a question regarding an estate? Call Me Now for a free confidential discussion of your issue. 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.