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.
  2. Contact any known creditors and inform them of the death.
    1. Note - Known creditors should be advised to provide the balance owed as of the date-of-death.
  3. Obtain an original death certificate, multiple copies are advisable.
    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. The form can be found at http://www.nyc.gov/html/doh/html/vr/vr.shtml.
    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.
  4. Locate the original will. Do not remove staples or alter the document.
    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.
  5. Note - The probate proceeding can only be brought in the county in which the decedent was domiciled. You should go to the appropriate county’s Surrogate’s Court and check their records to make sure no proceeding has already been started.
  6. If the decedent owned real estate, the homeowner’s insurance carrier should be notified in order to ensure coverage in case of damage to the property after the decedent’s date-of-death. This may result in a higher premium but the alternative is to risk non-coverage.
    1. In the sample case, the insurance carrier requested copies of the death certificate and Letters Testamentary (Certificate of Appointment) when they became available.
  7. Petitioning the Surrogate to Admit the Will to Probate. A will should nominate an executor who then petitions the Surrogate to admit the will to probate. Two, very important things, happen here:
    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);
    2. Second, an executor is appointed. Typically, the nominated executor in the will is appointed and receives Letters Testamentary (authority to act as executor).
  8. In order to file the petition for probate, the petitioner (typically the executor) needs to include the original will and certified copy of the death certificate. If the will has staple holes in it, the petitioner must attempt to determine who removed the staples and provide affidavits to the Surrogate explaining either: 1) who removed the staples and why they were removed; or 2) if (1) is unknown, then the chain of custody from the time the will was found to the time it was filed with the Surrogate.
    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.
  9. All interested parties must be listed on the probate petition including the beneficiaries, executors, trustees, and alternates. You will also need to name the legal distributees or heirs-at-law (regardless of what the will dictates). Determining legally interested parties can be difficult and the petitioner may overlook certain interested parties such as a creditor or estranged child; however, you should consult with your estate attorney in order to make sure you name all proper parties. If the named executor does not want to serve, that party is required to file a renunciation in order for an alternate executor to serve.
    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.
  10. Jurisdiction - Those named in the will are entitled to receive notice of the probate proceeding. The legal distributees must sign a “waiver and consent”. The executor should speak with the distributees to ascertain whether they would be willing to consent to the probate of the will. Otherwise, they will have to be cited.
  11. If there is no “self-proving affidavit” (also known as a “witness affidavit”) attached to the back of the will, the witnesses to the will must be located. They will need to attest to the fact that they saw the testator sign the will, that the testator was over 18 and had the mental capacity required to execute a will, that they were informed that what they were witnessing was the testator’s last will and testament, and that they saw the other witness sign. Some counties, such as Bronx County require the witnesses to appear, even if a “self-proving affidavit” was executed.
    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.
  12. The approximate value of the estate assets must also be determined and stated on the probate petition. This is only what you have personal knowledge of at this stage in the proceeding. If unknown assets surface, those assets can be accounted for after the executor is appointed. Keep in mind that any assets passing by operation of law (e.g. joint bank accounts, assets with a named beneficiary) are considered non-probate assets and therefore do not need to be included in this estimate. If the decedent received rental income, this will also need to be stated in the petition.
  13. If the will does not specifically state that the executor will not be required to provide a bond, an affidavit to dispense with the filing of a bond must be filed with the Surrogate. This affidavit is known in some counties as an affidavit of assets and liabilities. This document requires information regarding the known assets and debts of the decedent.
  14. Once the petition and all necessary supporting documents are complete, they are filed with the Surrogate. A filing fee is required; the amount depends on the size of the estate. If all necessary parties sign waivers and consents, the petition will be reviewed by the law department to determine whether the will should be admitted to probate and whether the executor should be appointed. If one or more necessary parties are cited, the Court will issue a citation and return date to appear in Court. The parties to be cited should be served prior to the return date in accordance with the rules regarding service of process. Your probate attorney can advise you on the proper means of service. If, upon the return date, everyone has been properly served and no one objects to the petition, then the matter will be marked for review by the law department to determine whether the will should be admitted to probate and whether the executor should be appointed.
    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.
      2. Letters Testamentary appointing the executor were issued in May.
        1. An uncontested probate petition is typically reviewed by the Surrogate in 2-4 weeks.
  15. Upon the Surrogate’s issuance of Letters Testamentary, the probate proceeding is complete and the executor has the authority to act under the Letters Testamentary. However, the estate administration process has just begun. The executor must then gather the assets (and liquidate if appropriate), determine and pay debts, file tax returns, account for all transactions, obtain releases from each beneficiary, and make distributions.

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.

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