Some Interesting Issues When Probating a New York Last Will

shutterstock_330039464-300x200The probate process in New York requires that statutory and procedural guidelines be complied with. The statutory framework is contained in the Surrogate’s Court Procedure Act and the Estates, Powers and Trusts Law. Admitting a Will to probate is, in effect, obtaining Court approval that the document is valid and its terms are enforceable as to the disposition of a decedent’s estate. The New York Probate Lawyer Blog contains many articles regarding this process.

When a Will is offered for probate, a petition is filed with the Surrogate’s Court along with the original Will, a death certificate and other required papers. These may include a kinship affidavit and affidavits from the attesting witnesses. Often the original Will has attached to it a self-proving affidavit that was signed by the Will witnesses at the time of the execution of the Will.

While most probate cases proceed without complications or unnecessary delay, there are many instances where problems arise that can sidetrack or prevent the completion of the Court determination of validity. One major hurdle may be in the form of a Will Contest. A Will may be contested for lack of due execution, lack of testamentary capacity, undue influence or even forgery. Another problem that may be encountered is proof of kinship. The statutes require that notice be given to all of the decedent’s distributees (next of kin). Such notice is usually in the form of a Citation, which is like a summons that requires the recipient to appear in Court and state whether they are going to challenge the Will. Sometimes, it may be difficult to determine the identity or location of a decedent’s next of kin.

Other cases may have problems associated with locating attesting witnesses or the original of a Will. If the Will original cannot be located, it may be necessary to use the procedures provided by SCPA 1407 entitled “Proof of lost or destroyed will”, to complete the probate. The difficulty in these cases often involves the rule that where an original Will is known to have been last in the possession of a decedent and cannot be located, there is a presumption that the Will was revoked.

A recent Queens estate case entitled Estate of Weiner, decided by Queens Surrogate Peter Kelly on January 17, 2020, provides another example of a probate issue. In Weiner, the decedent executed a Last Will. She then executed two codicils to her Will, which changed the nominated executor. When it came time to probate the Will, only a copy and not the original of the first codicil could be located. The Court found that it was not necessary to probate the first codicil. It found that the second codicil republished the Will but did not republish the first codicil and, as a result, the first codicil was revoked. Thus, the Court probated the original Will and the original second codicil.

I have represented clients in many probate cases having various complexities including Will contests and lost Will matters. Call me now for a free discussion regarding your estate question. We 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 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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