The probate process in New York requires compliance with the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA). One of the most important statutory provisions is EPTL 3-2.1 entitled “Execution and attestation of wills; formal requirements”. This statute provides the formality necessary with regard to the execution of a Last Will and Testament. Among the requirements is that a Will needs to have two (2) attesting witnesses.
The New York Probate Lawyer Blog contains numerous articles discussing the probating of a Will as well as aspects of estate settlement and intestate administration. One common question which clients often ask is whether there is a time limit after a decedent’s death in which a Will needs to be offered for probate. In short, there is no time limit. However, any delay in probating a Will may result in the loss of estate assets through foreclosures or other third-party actions. Also, if it does not appear that a Last Will existed, an administration proceeding may be initiated by a distributee or by a Public Administrator. The distribution of an estate through intestacy may not be in accordance with a decedent’s estate plan as expressed in a Last Will.
The probate process requires that the original Last Will filed with the Court, along with a Petition for Probate. Affidavits from the attesting witness are needed. Information concerning a decedent’s next of kin and assets are also included in the probate petition.
Sometimes a Will is offered for probate which was executed decades before a decedent’s death. In such cases, issues may arise as to the availability of witnesses who are required to sign affidavits or provide testimony. This was the circumstance described in a recent case entitled Will of John Douglas. In a decision dated December 18, 2024. Manhattan Surrogate Hilary Gingold was presented with a Will dated in 1999 as to a decedent who died in 2022. It appears that the Will was signed in Oklahoma and had two witnesses, one of whom was an attorney. Although both witnesses were now deceased, an attorney who was a colleague of the witnesses provided an affidavit which verified the authenticity of the witness’ signatures. It also appears that the document had been executed pursuant to both New York and Oklahoma law. In the decision, the Court found that the Will would be admitted to probate as an ancient document since it was over twenty (20) years old, not suspicious, and found in a natural place of custody. Also, the document contained an attestation clause. Thus, the Will was admitted to probate.
As can be seen from Douglas, the probate of a Will may involve complicated and unexpected issues. I have represented clients in Surrogate’s Court cases for over forty (40) years. Do you have an issue 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.