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C. Haner Law

In New York, the process of probating a Will requires a lot more than simply filing the Last Will and Testament with the Court after a parent or loved one has died. In fact, before the Court will even review the Last Will and Testament offered for probate, a would-be Executor must prepare, collect and file a small stack of documents with the Court.

Besides the original Last Will and Testament, the nominated Executor must obtain an original, raised seal, death certificate showing the deceased person’s date, place and residential address at death. Original, raised seal, death certificates are usually provided by the funeral home/parlor where the deceased person’s services were held. If, however, an original, raised seal, death certificate is not provided by the funeral home/parlor, the nominated Executor can obtain the required death certificate from the Town Clerk’s Office in the town where the deceased person died.

After collecting the original Will and an original, raised seal, death certificate, the nominated Executor must then complete a Probate Petition. In order to properly complete a Probate Petition, the nominated Executor must be able to provide the names and residential addresses of the decedent’s “Distributees” and a list, including values, of the deceased person’s assets.

Note that a decedent’s “Distributees” are the people who would inherit if the deceased person did not have a valid Last Will and Testament and/or if the Will is denied probate. Because Distributees stand to inherit if the Will is denied probate, they are “necessary parties”, and must either expressly consent to the Will being admitted to probate or fail to prove, typically at trial, why the Last Will and Testament should be denied probate. While Distributees have the legal ability to contest a Will offered for probate, they rarely do so. In most instances, a decedent’s Distributees are his/her spouse and children and, typically, and the decedent’s Last Will and Testament provides that his/her spouse and children will inherit. When this happens, the Distributees have no reason to object to the Last Will and Testament, and they sign notarized documents expressly stating that they have no objection to probate. When, however, a child is not provided for in a decedent’s Last Will and Testament, a contest and litigation concerning whether the Last Will and Testament should be admitted to probate are far more likely.

If all Distributees consent to probate, the nominated Executor should obtain a “Wavier of Process: Consent to Probate” from each Distributee. These will be filed with the Court to demonstrate that there is no objection to probate. If, however, any Distributee indicates that he/she intends to object to or contest probate, the nominated Executor must prepare and file a “Citation” with the Court. The Citation, though prepared by the nominated Executor, is actually issued by the Court and provides a preliminary hearing date at which the nominated Executor, typically by his/her attorney, and any objecting Distributee must appear and inform the Court of his/her intention to contest the Will. Prior to the hearing date, it is the responsibility of the nominated Executor to ensure the Citation is properly served on any Distributee who has not signed a “Waiver of Process: Consent to Probate.” Failure to properly serve the Citation will deprive the Court of in personam jurisdiction, and the probate proceeding will stall indefinitely until the Citation is properly served.

Once the above noted documents are complete and collected, the nominated Executor must determine and pay the required Court filing fee and file the “Probate Package” with the Surrogate’s Court in the county where the deceased person resided before death. In Nassau County, Suffolk County, Queens County and New York City, these documents should be provided to a Probate Clerk at the Surrogate’s Court, who will review the filing for completeness. After preliminary approval by a Probate Clerk, a Court file is created, and the probate process formally begins.

If no Distributee contests the Last Will and Testament, the probate process is very straightforward – after preliminary approval by a Probate Clerk, a member of the Court’s Law Department typically provides a secondary review and prepares a Probate Decree for the Surrogate’s approval and signature. Once the Surrogate signs the Probate Decree, probate is complete, and the Executor begins the process of administering the estate. When, however, a Distributee contests the Will, the probate process is far more involved and complicated, ultimately culminating in a trial at which the Surrogate will determine if the Last Will and Testament offered for probate is valid, and admitted to probate, or invalid, and denied probate.

The length of time to complete the probate process varies from matter to matter and county to county. When the Will is not contested, probate takes approximately 3 months; when, however, the Will is contested, the probate process can drag on for several years.

How Much Does It Cost To Probate A Will In New York?

The cost to probate a Last Will and Testament in New York depends upon two factors: The first factor is the attorney selected to assist with the probate process. The legal fees charged by attorneys varies widely, as does the way fees are charged (either charged on an hourly or as a flat fee basis). The second factor is the likelihood of a Will contest. If no Distributee objects to the Will being admitted to probate, probate is a straightforward affair. If, however, the Will is contested, the probate process can take years to complete.

At C. Haner Law, we prefer to charge fees on an hourly basis. This way the client only pays for what is done. If, however, the Will is not contested and all Distributees sign a “Waiver of Process: Consent to Probate”, we are happy to charge a flat fee if the client so desires. Our typical flat fee is $4,000.00, plus disbursements, to assist in a straight-forward probate proceeding. If, however, the Will is contested, and an hourly fee arrangement is necessary, the legal fees charged range from minimal, if the contest is concluded quickly, to substantial, if protracted litigation is necessary.

How Do I Challenge Or Contest A Will Offered Probate In New York?

As a general matter, people who are included and inherit pursuant to a Last Will and Testament do not contest the Will. The opposite is also true: people who are not included and do not inherit under the Will tend to contest the Will.

As a preliminary matter, it is crucial to note that only certain people have the legal ability, or “standing”, to contest an offending Last Will and Testament. Generally speaking, the only people with “standing” to contest a Will are the decedent’s Distributees, who are typically the decedent’s spouse, children and/or grandchildren. As a legal matter, Distributees are the people who would inherit from the decedent’s estate if the decedent did not have a Last Will and Testament. Because Distributees inherit when there is no Will, they have an incentive to contest the Will if they are not included in the Will. Typically, a successful contest to a Will results in a finding that the decedent died without a Will, which means the decedent’s Distributees now inherit as though the decedent never had a Will.

After the death of a loved one, it is the responsibility of the nominated Executor to gather required documents and being the probate process. Typically, the nominated Executor will contact all Distributees and provide them with a copy of the decedent’s Last Will and Testament and a document to sign called a “Waiver of Process: Consent to Probate.” If the Distributees have no objection to probate, he/she signs the “Waiver of Process: Consent to Probate” indicating as much. If, however, the Distributee wishes to contest the Will, he/she will refuse to sign the “Waiver of Process: Consent to Probate.” When any Distributee refuses to sign his/her “Waiver of Process: Consent to Probate”, the Executor must obtain and serve a Court issued Citation, informing refusing Distributee of a future Court date at which refusing Distributees must appear and inform the Court that he/she in fact intends to contest the Will.

On the “Citation return date”, which is Court date listed in the Citation, Distributee not included in the Will have the opportunity to request depositions of the attesting witnesses to the Will, the attorney who prepared the Will and, in some instances, the person offering the Will for probate. During the “Citation return date”, Court staff will typically meet with Distributees, the nominated executor, etc. and set forth a discovery schedule, which governs the exchange of documents, etc.

To all disinherited Distributees: it’s absolutely crucial that you do not sign any documents presented to you and, when you receive a Citation from the Surrogate’s Court (which will be served upon you by a process server if you’re in the State of New York or, if you’re not in the state of New York, it will be served upon you via certified mail, return receipt requested), you must review the Citation to ensure you appear on the Citation Return Date to inform the Court you wish to contest the Will.

Any disinherited Distributee is well advised to speak with an attorney familiar with Will/Probate Contests. Will/Probate Contests are extremely complicated and involve a specialized area of law.

For more information on Probate, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 888-5381 today.

C. Haner Law

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