Section 3

PROBATE: WHEN A PERSON DIES WITH A WILL

A. The "Probate" Process
B. Substitute Executors
C. Notifying The Beneficiaries and Heirs
D. Special Rights Of The Surviving Spouse
E. If The Will Cannot Be Located

A Will left by the decedent is not automatically valid. The Surrogate's Court has to make a determination that the Will is valid. That Court process is called "probate."

A. The "Probate" Process

A Will typically names an Executor (and a substitute Executor) to administer and distribute the decedent's assets. The named Executor must apply to the Surrogate's Court (usually in the county where the decedent resided) to have the validity of the Will established to the satisfaction of the Court. The named Executor's attorney does this by preparing and filing a "Petition for Probate" and other appropriate documentation. The Court will then determine if the Will was properly signed and witnessed and must also be satisfied that: (1) the decedent possessed sufficient mental capacity to make a Will; and (2) that the Will was the voluntary act of the decedent. If the Will passes these tests, the Court "admits the Will to probate" and issues "Letters Testamentary" to the Executor named in the Will unless that person is not eligible to serve (i.e. is incapacitated, is a felon etc.). The Letters Testamentary is the document issued by the Surrogate's Court which empowers the Executor to perform all of the functions to administer and settle the New York estate of the decedent (see Section 4 below starting on page 11).

If the decedent has real property outside New York State an "Ancillary" probate proceeding would have to be commenced in that state after the Will is admitted to probate in New York.

B. Substitute Executors

If the individual (or bank or trust company) named in the Will is unable (or unwilling) to serve as Executor, the responsibility falls to the substitute Executor named in the Will. If the Will does not name a substitute Executor, the Court will appoint a representative for the estate called an "Administrator c.t.a." (Administrator with the Will annexed). The Court will typically appoint as "Administrator c.t.a." the beneficiary entitled to the largest portion of the estate under the Will.

C. Notifying the Beneficiaries and Heirs

Beneficiaries under the Will who are not heirs of the decedent are entitled to receive notice that the Will leaves them property of the decedent. This is accomplished by mailing each such beneficiary a "Notice of Probate" which lists the property left to the beneficiary by the decedent.

The named Executor or his or her attorney must make diligent efforts to identify and locate the whereabouts of each of the decedent's heirs regardless of whether that heir is left any property under the Will. Each heir (defined in Section 2 above on page 6) has the right to object (i.e. contest) to the Will being offered to probate and for this purpose each heir also has the right to examine (1) the witnesses to the Will; and (2) the attorney who drafted the Will before deciding whether to contest the Will.

Each heir can also expressly consent to the Will being admitted to probate. If the heir consents, he or she will sign a Waiver and Consent agreeing to the Will's admission to probate and to the choice of Executor. If not, the heir will be served with a Citation of the Court and a copy of the Will and will have to appear in Court on the date stated in the Citation. If the heir neither signs a waiver nor appears in court, the heir will be foreclosed from objecting to the Will being admitted to probate.

When there is a contest to the Will or when other matters delay the probate process (such as when heirs cannot be located or there are minors who are heirs) the Court can still appoint the nominated Executor under the Will to serve on an interim basis. The interim executor can administer the assets of the estate, but may not distribute any of the assets to any of the beneficiaries set forth in the Will until the obstacle or delay is resolved.

D. Special Rights of The Surviving Spouse

If the surviving spouse is omitted from the Will entirely (or receives less than a certain percentage/sum of money from the estate) the surviving spouse has the right to "elect against the Will." This entitles the surviving spouse to receive what is known as his or her "elective share" - i.e. the greater of one-third (1/3) of the estate or $50,000. (The computation of one-third of the estate can include assets passing outside the administered estate.) There are strict time limitations for the surviving spouse to make this election.

E. If The Will Cannot Be Located

If the Will cannot be located in the decedent's home (typically in a lock box or similar place where valuable papers are maintained) and the family members do not know where the Will is being kept, a search must be undertaken to locate it. For example, if the decedent had a safe deposit box, one of the heirs must apply to the Surrogate's Court for an order to search the safe deposit box.

The Will might also be on file with the office of the attorney who prepared it. The Executor named in the Will is entitled to obtain the original Will without charge or obligation and may choose to be represented by any law firm he or she desires, regardless of who drafted the Will.

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Howard Garfinkel, Esq.

Lauterbach Garfinkel Damast & Hollander, LLP
49 North Airmont Road, Suite 101
Suffern, New York 10901
845-368-4400 - Office
howardg@lgdhlaw.com