Anatomy of a Probate Proceeding

This article is intended to provide an overview of the necessary steps in a sample New York probate case. Every case is different and the case highlighted here has certain unique characteristics that are not present in all cases. Likewise, some cases contain facts that are not present in this representative case. You should consult with an estate attorney prior to engaging in a probate proceeding.

In the following text, the presumed client is the executor nominated in the deceased’s will.

1. First, have the decedent’s mail forwarded to your address.
   1. This will provide you with insight into the decedent’s potential assets, debts, and ancillary issues.
   2. In our sample case, the named executor resided out-of-state so mail-forwarding was crucial.
   1. Note - Known creditors should be advised to provide the balance owed as of the date-of-death.
   1. To be safe, the executor should obtain 5 certified copies of the death certificate. To obtain copies, you can mail an application to the NYC Office of Vital Records.
   2. An alternative and often simpler means to obtain death certificates is to visit the website www.vitalchek.com. This website allows you to order death certificates online.
   3. Note – only certain individuals with a close relationship to the decedent may order death certificates, usually immediate family. The NYC Office of Vital Records, like many government agencies, is a fickle organization. If you have trouble obtaining certified copies of the death certificate, you should contact your estate attorney.
   1. In our sample case, the original will had multiple staple holes, which indicates that the staple was removed at some point and then refastened. While it’s possible, and in most cases probable, that the removal was innocent, the Surrogate is concerned with foul play and will require proof that the will was not tampered with. The main technique used here is the Staple Affidavit which is explained further under the Petition section of this article.
   1. In the sample case, the insurance carrier requested copies of the death certificate and Letters Testamentary (Certificate of Appointment) when they became available.
   1. First, the will must be proven, meaning the Surrogate must be satisfied that the document is, in fact, the last will and testament of the deceased. In order for the will to be proven, the deceased must have:
      1. Properly executed the will; and
      2. Possessed testamentary capacity at the time the will was executed, meaning he or she understood what a will does, understood the nature and extent of his or her assets, and understood the natural objects of his or her bounty (i.e. who the heirs at law were);
      1. In our sample case, as described above, there were multiple staple holes; therefore, the person who found the will was required to file an affidavit as well as the person she gave the will to. The attorney who received the will and filed it with the Surrogate was also required to affirm exactly what he did. In this case, no one knew why there were additional staple holes so everyone attested to that fact and the facts that each person did not alter the will in any way. The Surrogate was then able to conclude that no foul play had occurred.
      1. In our sample case, the first nominated executor in the will did not wish to serve; therefore, he renounced and consented to the appointment of the first alternate executor nominated in the will.
      1. Our sample case took place in New York County but the will had no self-proving affidavit attached to it; therefore, we were required to locate the witnesses to the will. Each witness signed an affidavit as described above.
      1. In the sample case, all necessary parties were willing to sign waivers and consents; therefore, no citation or court date was necessary.
      2. Timeline
         1. The client retained our firm in January and the probate petition was filed in April. This 60 day span included having the petition and supporting documents prepared and then signed by the client, obtaining waivers and consents from each heir, obtaining affidavits from each witness, obtaining staple affidavits, and filing the documents with the Surrogate.
            1. The preparation stage is typically 2-4 weeks.
            1. An uncontested probate petition is typically reviewed by the Surrogate in 2-4 weeks.

            Many hurdles can arise during the probate and estate administration process and the executor has a fiduciary duty to act in the best interest of the estate with prudence and undivided loyalty. Therefore, the executor is liable for acts of negligence and, of course, intentional misconduct. It is important to seek legal advice from an experienced estate attorney in order to avoid pitfalls.

            Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

            If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

            

            Representing trust & estate clients with an emphasis on estate litigation in the New York City Metro Area.

            Join The Conversation Rich M 02/21/2023 11:47 PM

            I appreciate that you've generously shared your professional knowledge here. Your distillation of the probate requirements into laymen's language has been super helpful as I work through the probate petition on my mom's behalf, following my dad's passing. Thanks for your post.