stamp with probate written on it

New York Probate Process

What is the New York Probate Process? – Probate is the process by which the state of a decedent ensures that their Last Will and Testament was drafted and executed correctly, that the assets and debts of the decedent, the person who died, are identified, that the debts are paid and the assets are distributed according the decedent’s Will. The New York probate process governs the transfer of legal title of property from the estate of the person who has died to those named in that person’s Last Will and Testament. The New York probate process is regulated by the Surrogate’s Court. The Executor, a person or persons named in the Will to act as coordinator, or fiduciary, of the process, often works with a Probate attorney who handles the legal aspects of the process.

What happens in the New York Probate process? – The executor of a Will contacts a probate attorney to review the decedent’s Will, discuss the process draft and execute the probate petition. The Surrogate’s Court clerk reviews the probate petition, a document filled out by the Probate attorney, to ensure that the proper parties and assets are listed. Then the clerk checks the Will to make sure that it is compliant with New York law. Prior to the submission of the petition to the court, certain relatives of the decedent are located and notified about their passing and given a copy of the Will for approval or challenge.

Why are relatives notified? – The process of notification and waiver ensures that anyone who would have received the decedent’s assets had they died without a Will is alerted and given a chance to dispute the Will if they have just grounds to do so. The notification process operates on the premise that only those relatives most closely related to the decedent are contacted. The state looks first to a legal spouse, then to children (both natural and adopted,) then to parents, then siblings, then aunts and uncles and finally to first cousins. Notification is made to and a copy of the Will is sent only to the closest group of relatives. If a married person dies, their spouse is the only person notified, and in most cases, is also the executor of the decedent’s estate. If a legal spouse is dead but the decedent had 2 children, only those children would be notified and sent a copy of the Will for approval or challenge. If there were no children in the scenario above, but there was a living parent, that parent would be asked to review the Will and sign a Waiver allowing it into probate.

Who can challenge a Will? – Because of the notification process and the uncertainty of exactly who will be alive upon someone’s death, a distant first cousin who may have had little or no relationship with the decedent will all of the sudden be asked to sign off on what may be a substantial estate, an estate that he or she would be the beneficiary of if there were no will. The monetary incentive to dispute that Will then becomes clear. However, if the Will is drafted by a competent attorney and is New York compliant in every way, the probability of a successful challenge is greatly diminished. There are also techniques that a versed Nontraditional Estates attorney can employ to discourage a challenge from a distant family member. Also, if someone drafts a “codicil,” or amendment, to a Will, anyone who was negatively affected by that codicil has standing to challenge a Will. Finally, a beneficiary under a previous Will may challenge a subsequent Will, however, they are not required to be notified of the subsequent Will’s submission to probate.

How can a Will be challenged? – The New York probate process has specific procedures for a Will challenge. In most cases, a person who receives a notification of a probate proceeding and fails to consent to it, appears in court in what is called a citation hearing. At that hearing, the judge makes sure that all parties were served correctly and then offers the challenging party the ability to hold what are called 1404 hearings. 1404 hearings allow a party to interview the witnesses to a Will execution, the attorney who drafted the Will and have access to the attorney’s notes prior to the death of the decedent. If, after the 1404 hearings, the challenging party chooses, they may seek a trial to determine whether the decedent had capacity to execute a Will, whether there was fraud in the execution of the Will or whether there was coercion in the execution of the Will. In most cases at the stage of the New York probate process, a case will settle in order to avoid excess costs and fees.

For more information about the New York probate process, contact us and speak to a specialist probate lawyer to answer your probate questions.