Probating A New York Will – A Complex Process

Probate-300x201A Last Will and Testament is a document meant to memorialize a person’s intentions regarding the disposition of his property after death.  The various rules and statutes relating to the probate process are typically strictly adhered to by the Surrogate’s Court.  This is because if there are any variations or discrepancies, a decedent is no longer around to explain what was intended.  The Surrogate’s Court is the place where most Wills are filed to commence probate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will as well as other topics, such as intestate distribution and estate settlement.  As many of these articles discuss, the process is commenced by filing a Petition for Probate with the Court and seeking the granting of Letters Testamentary.  The Petition contains a fair amount of information, including the name and address of the petitioner, the decedent’s next of kin (“distributees”) and Will beneficiaries.  Information is also provided regarding the date of the Will, the names of the Will attesting witnesses and the estimated value of the probate estate.

For the most part, the distributees have a right to challenge or contest a Will.  If the document is determined to be invalid, and the decedent is found to have died without a Will, the estate is distributed to the intestate heirs.

As discussed in many Blog articles, Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the requirements for executing a Will.  These procedures need to be strictly adhered to.  The formalities such as having two (2) attesting witnesses and a written document signed at the end ensures that only authentic papers are allowed to control the disposition of a decedent’s estate.  Of course, there are numerous instances where family members file objections to a Will.  The grounds for these objections vary, but typically fall into the following categories:  lack of proper execution, lack of testamentary capacity, and undue influence.  Occasionally, there are claims of fraud, duress or that a decedent’s signature has been forged.

Each of the grounds asserted in objections has its own set of statutory and procedural requirements.  The petitioner probating a Will has the burden to demonstrate due execution and testamentary capacity.  Other grounds of objections such as undue influence must be proven by an Objectant.  Another interesting aspect is that a Will which is executed under the supervision of an attorney is presumptively deemed duly executed.

Although Will contests only occasionally occur, the ensuing estate litigation can take a long time to complete since it involves various forms of discovery including depositions of parties and witnesses.  Moreover, the Court itself has a duty to ensure that a Will is genuine and validly executed.  This requirement is set forth in Surrogate’s Court Procedure Act Section 1408 entitled “Probate not allowed unless court satisfied.”

This statute was recently referred to in a Queens estate case entitled In the Matter of the Judicial Settlement of the Account of Lois M. Rosenblatt, Public Administrator of Queens County, as Temporary Administrator of the Estate of Maria Schloegl decided by Queens Surrogate Peter J. Kelly on March 28, 2024.  In Schloegl, the Court vacated a decision granting probate to a Will after issues arose regarding its validity.

As can be seen, the probating of a Will can be complicated and the assistance of an experienced trust and estate lawyer can be essential in these matters.  I have been representing clients in probate and other Surrogate’s Court matters in New York 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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