People who pass away having executed a Last Will and Testament during their lifetime will have their Will submitted to the appropriate Surrogate’s Court for probate. Probate is the process of the court approving the executed document as the official Last Will and Testament of the decedent, stating it is valid to pass the assets of the estate according to the terms of the Will.
There are many parts to the probate process. While it is a somewhat straightforward proceeding for an experienced estate attorney, it does present various challenges from time to time. Probate is almost impossible to do without an experienced estate planning attorney’s assistance.
Preparing the Probate Petition
Your estate planning attorney will petition the Surrogate’s Court to have the Will admitted to probate and have an executor appointed. In most cases, this is the executor nominated in the Will. In situations where the nominated executors are deceased or unable to serve, or where the nominated executor does not wish to serve, another person interested in the estate can serve as petitioner.
The petition will then contain certain information regarding the decedent, including their name, address, and date and place of death. The petition must also list the date and witnesses of the Will, and a breakdown of the assets of the estate.
The next and most important part of the probate petition is the list of the interested parties of the estate. This first includes everyone who would inherit from the decedent if they did not have a Will. Depending on the surviving family of the decedent, this can include a spouse, children, parents, siblings, nieces and nephews, aunts, and uncles, first cousins, or first cousins once removed.
Additional interested parties include the nominated executor, trustees of any trusts affected by a power of appointment in the Will, and any people with an adverse interest to a power of appointment exercised in the Will. This section is so important because probate cannot be completed until the Court has obtained jurisdiction over all interested parties in the matter. This can be done by either having the interested parties sign a Waiver and Consent form, or having the Court issue a citation which must be served on any interested parties who do not sign a Waiver and Consent.
The next part of the probate petition is to list the people who are beneficiaries to receive property under the Will who are not interested parties. This can include grandchildren, friends, charities, and more remote relatives who are left bequests. While these people do not need to sign anything or have a Citation issued against them, they must be mailed a Notice of Probate to inform them of their status within the estate.
The final part of the probate petition is to ask for requested relief from the Court, which will include the appointment of the executor of the estate and issuing of Letters Testamentary. If the Will creates any trusts that will be given assets, the Court will also need to issue Letters of Trusteeship to the nominated trustee. It is also customary to ask the Court to waive the requirement for the executor to have a bond, as long as the Will states that the executor does not need to get bonded, as most Wills do.
Gather Necessary Documents
There are two main original documents that need to be obtained before you can submit a Probate Petition: the original Last Will and Testament itself, and the death certificate for the decedent.
Even though the New York State Court Electronic Filing system (NYSCEF) currently in place allows probate petitions to be submitted to the Court online, the original Will and an original death certificate must be submitted to the Court. It is not hard to understand why this is required, the original Will obviously needs to be submitted to the Court if the Court is going to approve it, and the death certificate is required to confirm that the person you are stating is deceased is actually deceased.
Locating the original Will is not always easy to do. In the best case scenario, the original Will is kept by the attorney who drafted the Will, and the decedent let their family members know who drafted the Will.
If the drafting attorney has the original but the family members do not know who the drafting attorney is, there will hopefully be a copy of the Will kept in the home of the decedent which would have the name of the attorney on it. In some cases, the original Will is kept in the home of the decedent. This is risky, though, because if the original Will is lost, the law presumes the decedent destroyed and revoked the Will and you will need to show the Court evidence that this is not the case for the court to admit a copy of the Will to probate.
Some people also choose to leave their Will in a safe deposit box in a bank, but this is not a good idea because your family will need a court order to open that box, if they even know it exists.
Obtaining a death certificate is a much easier and more straight-forward process. When handling final arrangements after the death, the funeral director will send in the forms to have the death certificate issued and then sent to the family. If significant time has passed since the death and there are no more original death certificates, additional ones may be obtained from the state, city, or town of the decedent’s death.
To prove the validity of the Will, the witnesses to the Will must sign an affidavit that they saw the decedent sign the Will and then signed as witnesses, and that, among other things, the decedent was of sound mind at the time and acting under his own free will. It is possible for the witnesses to sign an affidavit to this effect concurrently with the signing of the Will, and this is standard practice for attorneys drafting Wills. If this witness affidavit does not already exist, an affidavit will need to be prepared and sent to the witnesses for signing.
Family Tree Affidavit
In any case where there is a sole heir or the next of kin are more remote than spouse and children, a family tree affidavit must be submitted to the court with the probate petition. This affidavit must list the family tree of the decedent and be signed by someone who knew the decedent and discussed the family tree with the decedent. Additionally, the affidavit cannot be completed by a spouse or child of any heir of the decedent. If there is nobody available who is able to sign this affidavit, a genealogical search firm may be needed to research the family tree and prepare such affidavit.
Preliminary Letters Testamentary
Due to the complexities of the requirements listed above, it can take a long time to complete the probate process. In situations where it is expected to take a longer period of time to complete the process but there are estate matters that require immediate attention, the petitioner can ask to be given preliminary letters testamentary that will be effective while the probate process is pending. This allows the nominated executor to handle estate assets, but it does not give them the right to make distributions to any beneficiaries. In situation where there is real property that needs to be maintained or volatile stocks or assets that need to be managed, it is extremely important to have preliminary letters granted.