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Thursday, March 19, 2015

What is Probate?

Probate is a process that proves to the court that a decedent’s will satisfies all the statutory formalities and reflects the decedent’s wishes. Only after the court is satisfied that the Will is valid, will it grant probate, allow fiduciaries to be appointed and let the directions of the Will be carried out.

Freedom to dispose of assets: In New York, a testator of a Will has almost complete freedom to distribute his assets as he wants. There are, however, a few prohibitions. First, one cannot disinherit a Spouse (unless there was a valid prenuptial agreement or some extraordinary circumstances). One can, however, disinherit some or all of his children, siblings, and parents. Second, one cannot violate public policy through one’s bequests (such as promoting terrorism, encouraging divorce, encouraging racism, etc). Third, one cannot dispose of assets that pass through operation of law (such as jointly owned property).

Reasons for court to deny a will probate: The court can deny probate on the grounds of lack of testamentary capacity, failure of proper execution, fraud, and undue influence.

Finding the Will: If the proponent of a decedent’s will cannot locate it, there may have to be some preliminary steps. Sometimes the draftsman attorney keeps the Will in his office and executor has to contact the attorney. Sometimes, the Will is filed with the Surrogate’s Court. Sometimes the Will is kept in a Safe Deposit box: then a petition to search the deposit box must be filed with the cour, and the safe deposit box must be examined in the presence of a bank office. Sometimes, the Will is kept in the home of the decedent; then a petition to search the apartment must be obtained from the court and the apartment will be searched in the presence of a police officer.

Who can offer the Will for Probate? The proponent of a Will is most often the Executor listed in the Will. However, any person having an interest in the estate, including a legatee or a creditor, may offer the Will for probate.

What must the probate petition include?  

  1. The petition must describe the Will (give the date of the instrument and names of attesting witnesses)

  2. The petition must include the names of all the people who are entitled to receive money under the terms of the will and the names of all the people who would be entitled to receive money from the decedent under the law (if there was no will).  All these necessary parties must either consent to the probate petition, or they must be served with a citation.

  3. The petition must state the size of the estate.

  4. The petition must identify any extraordinary issues.

  5. The petition must prove that the decedent is dead (by attaching a death certificate).

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

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