Wills and Probate Court
Probate is the process by which a person's last will is validated by the Court. When a person dies, the Last Will is filed with the Court. The probate proceeding involves the preparation and presentation to the Court of various papers and notice to the decedent's next of kin. These individuals are called distributees. Wills and probate court can be very complex. The initial papers filed with the Surrogate's Court are usually the Probate Petition, the Last Will and the decedent's death certificate. The probate petition must contain very specific information regarding the decedent and the distributees. Sometimes there may be a need for preliminary Court filings. For instance, if the decedent died at home and the police department was called and the home was sealed, the Court can issue an order allowing a person to search the home to look for a possible Last Will. If a Will is found, it can be filed with the Court and the probate process can be started. Also, sometimes a person is withholding a Last Will and refuses to file it with the Court for the probate process to begin. When this occurs a petition can be filed with the Court to force the person to appear in Court and produce and file the Will. On the Court date the Court can direct that the Will be produced for probate.
In most instances, the probate proceedings are straight forward and the Last Will is admitted to probate or validated by the Court. The Court will then generally appoint an Executor who can administer the estate and distribute the estate assets according to the Will provisions.
Occasionally, the validity of the Last Will may be contested or the Court may determine on its own that certain formalities or aspects of the Last Will presented to it prevent the Court from admitting it to probate. There are numerous procedures that can be involved with determining the validity of a Will. One common process is provided by the New York Surrogate's Court Procedure Act Section 1404. This statute allows certain persons who are interested in the estate to obtain information and pre-trial testimony regarding the preparation and the execution of the Will. Testimony can be obtained from the attorney who drafted the Will and the witnesses who signed the Will when it was executed by the decedent. If there appears to be valid problems regarding the Will, objections can be filed and there can be a trial of the Will Contest.
Since the decedent is no longer alive to tell or explain his or her desires, it is up to the Court to make sure that the Last Will filed with the Court is a valid document expressing the decedent's wishes. Wills and probate Court protect the decedent's estate plan.
I have many years of experience working with and advising clients in probate proceedings and the creation and implementation of estate plans that effectively express the clients’ personal desires regarding the disposition and protection of assets. while providing potential tax advantages and security for family and beneficiaries. I graduated in the top 10% of my class at The New England School of Law in Boston and served on the prestigious “Law Review.”
Do you need a lawyer or have any questions about a probate matter or your estate? Contact me by phone at (212) 355-2575 or by e-mail