It is well known that writing an estate plan is essential to have an effectual distribution of assets at death. A lot of time and effort can be expended creating a Last Will, Living Will, Health Care Proxy and Power of Attorney that reflect a person’s desires and intentions. The New York Probate Lawyer Blog has published numerous articles examining the planning of estates.
Additionally, it should be recognized that in order for a Last Will to be put into effect, the Will must be validated through the probate process. This process requires that the Will be filed with the Surrogate’s Court and subjected to the review and procedures mandated by the Surrogate’s Court Procedure Act and the Estates, Powers and Trusts Law. One of the most essential aspects involved with probating a Will is the necessity to provide the proper notice to a decedent’s next of kin or distributees. This requirement has been reviewed on many occasions in this blog and it is important to bear in mind. A decedent’s next of kin must be given notice because they have a right to contest the Will. In many cases if the purported Will is found to be invalid, the distributees are entitled to receive an intestate share of the estate which may be much greater than their interest under the Will.
The usual course of a probate case involves the issuance of a Citation by the Surrogate’s Court. A Citation is like a Summons and informs the parties to whom it is directed to appear in Court on a date certain and provide any Objections to the Will. The Citation must be served on the distributees in a manner provided by the statutes and Court directions. Once proper service of the Citation occurs, the Court has jurisdiction to hear and rule regarding probate.
There are many instances where the service of the Citation according to the directions cannot be accomplished. For example, if the Citation must be served by personal delivery and a valid address for a distributee is unavailable, a due diligent search is needed to locate the individual. The Courts are very concerned about providing proper notice to all parties. This is especially important since the Court does not want estate litigation to occur in which someone says they were not properly served. The validity of a Court’s decision concerning probate may be overturned if a party is not properly notified.
A recent Staten Island estate case which was appealed to the Appellate Division Second Department concerned the proper service of a probate Citation. In Matter of Pollina, decided on December 30, 2020, the Court upheld the service of a Citation which had been made by regular mail. It was found that due diligent efforts had been made to serve the Citation on a daughter of the decedent by other methods and that the daughter had, in fact, received notice regarding the probate proceeding. One interesting aspect of the case was that the service of the Citation was made by regular mail without prior Court approval. The Court approved the method of service after it was completed which is typically not allowed.
I have represented individuals in many probate cases both contested and uncontested as well as numerous other types of estate and trust matters. Call Me Now for a free confidential review of your estate issue. We also handle guardianship proceedings and provide 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.