When we “probate” a Will, we are having the Court recognize it as official and proper. The Court then grants “Letters Testamentary” to the Executor, giving the appointed person authority to act.

When looking at a probate proceeding, a few basic elements will determine how simple or complicated the proceeding is going to be.

Here are 3 important ones:

1. Does the Executor have the ORIGINAL Will. This is very important, and quite frequently clients come for an appointment and all they have is a copy. Copies can be probated, but it is much harder and more expensive.  When we don’t have the original, serious efforts must be made to locate the original. Some places I suggest looking are:

– The decedent’s papers and records. Clients usually say they looked. I suggest they look again.

– Safe deposit box.  If the decedent has one, sometime the Will is in there. Getting it out after the person has died may take some legal work, but if the Will might be there you we have to look.

– With the drafting attorney.  I don’t generally hold original Wills, but many attorneys do.  It’s kind of an old school hostage thing, as it increases their chance of getting the probate work.  Anyway, sometimes we have to extract the Will from the drafting attorneys, and sometimes issues arise.  What if they died?  Moved?  Were disbarred?  Lost it?  (I’ve encountered all of these!)

– On file with the Court. Many lawyers don’t know a Will can be filed with the Court while a person is alive. I’ve done this quite a few times, usually when I am concerned that an angry relative might get access to the decedent’s Will and destroy it.

– In the possession of another family member.  It doesn’t hurt to ask.

2. Did the witnesses execute a “witness affidavit”?  A will does not have to be notarized.  In New York the legal requirement is that it be “signed in front of two witnesses”.  However, best practice for will execution is to have the Will signed in front of two witnesses and then have the witnesses sign an Affidavit (which is notarized), attesting that everything was done that needed to be done.  When this Affidavit is with the Will, we don’t have to locate and contact the witnesses.  When the Will doesn’t have the witness affidavit, and you want to probate, you have to find the witnesses and get them to sign an Affidavit.  Another potential “royal pain”. What if their signature is illegible so you can’t identify them?  What if they died?  Moved? Don’t remember anything?   I’ve encountered all of these too.  Generally the problems can be solved, but it’s much more work!

3. Can we identify and locate the “distributees”.  These are the people who would inherit under intestacy (ie – if there were no will).  In a New York probate proceeding you have to get jurisdiction (legal lingo for “you have to show the Court they received notice”) over them, as they are the only people with standing to contest the Will. It’s difficult to probate when we don’t know who they are and/or where they are.   Also, sometimes getting jurisdiction over these people presents other problems.  They could be dead, missing, mentally incompetent, incarcerated, questionable paternity, etc.   When analyzing a new probate, an initial important issue is always “what will be involved in getting jurisdiction?”

Clients often ask “How much will it cost to probate a Will?”  I am always up front and willing to give a quote, but not without first getting a handle on the  important “little things”.

To understand things that would add complexity to probating a Will, it is useful to look at what an ideal (and easy) probate looks like.  The complicated situations occur when one or more of these simplifying factors are missing, or when some troubling variation is in play.

In an ideal situation, we have the following:

– An attorney prepared and supervised Will.

– Two witnesses have signed the Will, and also signed a Witness Affidavit.

– We have an original Will, not a photocopy.

– There are no corrections, deletions or alterations on the Will.

– The staples have not been removed.

– We know who the distributees (people who would inherit if there were no will) are, and we know where they are.  Even better, we know they will sign a Waiver agreeing to the probate.

– We have a Will that names an Executor and that person is alive, willing to serve, and doesn’t have anything about them that would prevent them from serving.

– The Will doesn’t do anything that would tick off an interested party.

– The terms of the Will are clear and easy to understand.

– The person’s non-probate assets (i.e. – accounts with beneficiaries, life insurance policies or jointly held real estate) are distributed consistently with the apparent intention of the Will.

– There isn’t a spouse being cut out in the Will (thus triggering a right of election).

– The death certificate lists an address in the County you think it should.

– There aren’t big creditor claims, or Medicaid liens, or open taxes, or years of unfiled taxes.

– We know what the assets are and where they are….and nobody has plundered them with a power of attorney.

– The person did their Will a few years ago (as opposed to a few days, or hours, before they died)

Contrary to what many people think, most Wills fit the profile above.  Things need to be done, and they can be easily done.

Of course, there are many situations where one or more of the above complexities are in play.  They can all be addressed, but they take some know-how, some time, and some expense.

These issues are precisely the reason why the question “How much do you charge to probate a Will?” cannot be answered until AFTER determining the existence, and extent, of the possible complexities.

The word “probate” is often tossed around as something to be avoided.  As if the failure to avoid it were a mark of stupidity, or symbolized a lack of care or planning.

On some level if a person does extensive planning, and has ALL their assets with named beneficiaries, or if a person creates a trust (AND takes the additional step of transferring ALL their assets to the trust), probate can be avoided.

But what is actually being avoided?  Is avoiding it worth the effort?

What is probate, really?

In New York, probate means that a Will has been recognized by the Surrogates Court as proper.  The end result is that somebody (usually the person named as Executor in the Will) receives a document from the Court called “Letters Testamentary”.  This is the Executor’s proof that he/she has authority to act on behalf of the Estate.

When there is a Will, in order to transfer any asset (bank and brokerage accounts, real estate, co-op apartments, etc) that was owned in the name of the deceased person, you need Letters Testamentary.

If you are named as an Executor in a Will, and you have the original Will and a death certificate, can you go into a bank and close out a deceased persons account? Nope.  The bank will tell you to come back with Letters Testamentary. What they are really saying is “get the will probated”.  This requirement is essentially a safety measure that protects all the interested parties.

Probating a Will is a Surrogate’s Court proceeding.  The specific facts and circumstances will determine whether it’s simple (and many times it is) or complicated.

I’ve heard people say that many procedures were “invented by lawyers to make things complicated so lawyers can make money”.  I see it quite differently, and I would summarize the need for these proceedings as follows:

“There is no end to the creativity and deviousness of SOME people when it comes to doing what is NOT proper, ethical, moral and legal.  The court proceedings are designed to protect the wishes of the person who made the Will, as well as to protect those who the decedent intended to inherit.  Related to that is sometimes it’s just not clear that the “Will” in question is actually what the person wanted. The procedures are designed to make sure the people affected by the Will are notified and that they have an opportunity to be heard (if there is some issue worth hearing)”

Since there is no way for the Court to know in advance whether a particular Will has “issues”, or whether the people involved are honest and nice, to probate a Will and get Letters Testamentary requires following the procedures.  That being said, VERY often you can identify the interested parties, they can all sign a “Waiver and Consent”, and the Will can be admitted to probate (and Letters Testamentary issued) pretty quickly.

Does it take some legal knowledge and time and experience to probate a Will? Sure, but in friendly situations (which is often the case) the fees should not be onerous. If they are, call a different lawyer. Can the fees become substantial if there are issues with a Will?  Certainly, but we lawyers didn’t create a system to encourage that. The procedures are in place to be sure that interested parties are heard and can have the issues resolved by a Court if necessary.  Personally, I’d rather earn modest fees in friendly situations, as opposed to bigger fees from dysfunctional family feud cases.  But hey, we can only play the hands we are dealt.

Probate is not a dirty word.  It’s a necessary proceeding so that a person’s Will can be carried out.

Questions sometimes arise about where to keep a Will, and who to tell about it. In a perfect world, where families are close and people communicate openly, this would not be an issue.  The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowledge that when the time comes, the will will be found, the Executor will probate the Will, and its terms will be carried out.

Unfortunately, things don’t always work that way.  Sometimes clients have to resort to deception and skulduggery just to make their will, and they want to keep it a secret.  Sometimes they are comfortable having people know they made a Will, but they don’t want the location of the Will to be known.  When I draft Wills for clients in this situation, I want to respect their wishes and help them achieve their objective.

I always alert Will drafting clients about the importance of deciding where the Will should be kept.  In these situations I look at whether anyone with access to the will would benefit from its disappearance. I recently had an elderly client whose closest living relative is a nephew.  He didn’t care much for the nephew, who would stand to inherit 100% if there were no Will.   He put the nephew in the will for $50,000, made some other cash bequests, and left the rest (about $400,000) to his best friend, with a provision that if his best friend died first, this share was to go to his best friend’s family.  I knew this client long enough and well enough to know this was all legit, but he is very concerned that his nephew would be called to his residence if he died, and then the Will would not be secure.  (As an aside, in my view a person would have to be conscience-less to destroy a Will, but sadly there are a lot of folks who’d do that)  My client is uncomfortable keeping the Will in a safe deposit box, and did not want to leave it with me.  I suggested that we file the Will for safekeeping with Surrogates Court, while he is still living.

Many people, including lawyers, don’t know you can do this.  You CAN, and it can be very useful.  In New York, it costs $45 to file.  The benefit of this is clear:  A person who doesn’t like the Will can’t get at it.  Furthermore, if the person dies and the bad person tries to file an Administration proceeding as if there were no Will (which is what they always do), the Surrogates Court clerks ALWAYS checks for wills on file.  This stops the bad guys in their tracks.  I have filed wills for safekeeping quite a few times in the last 30 years.  I know of a few instances where it prevented mischief.  Just as important though, is that the clients always felt better having done it, and they always appreciated the advice.

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order with the closest relatives inheriting. In New York, it goes like this:

– if a spouse and no children, all to the spouse

– if children and no spouse, all to the children, per stirpes *

– if spouse and children, first $50,000 to the spouse, then 50% to the spouse and remaining 50% to the children, per stirpes *

– if no spouse or children, all to the parent(s)

– if no parents, all to siblings (or children of predeceased siblings, a/k/a nieces/nephews), by representation **

– if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins. (lots of special rules)

– if no aunts/uncles/cousins, you go to first cousins once removed, ie – children of pre-deceased first cousins (even more special rules)

* I try to avoid using legal lingo, but “per stirpes” come up a lot, and is mentioned in lots of wills.  It means “per the lineage”, and can be illustrated with a simple example.  If an unmarried person dies, and had two adult children, but one of the children had pre-deceased but had three children (grandchildren to the person who died), the estate would go 50% to living child, and 50% split 3 ways among the children of the pre-deceased child.

** Sibling/niece/nephew cases are not done per stirpes, but “by representation”.  The best way to calculate this is to say its sort of like per-stirpes BUT nobody has an advantage or disadvantage by being in a larger or smaller family.  A simple example to illustrate this:  The decedent was not married, had no children, and parents pre-deceased.  He had three siblings, one is living and the other two pre-deceased.  Of the two who pre-deceased, one had two children and the other had four children.   Under inheritance by representation, the surviving sibling would inherit 1/3, and the remaining 2/3 would be divided equally among the six nieces/nephews.

The above is a rough sketch.  There are rules to cover EVERY situation you could think of, and they ALL come up.  When the question is “which relatives are entitled to what percentage”, there is always an answer to that question.  Of course, sometimes it is not so clear who is legally related. As you might imagine, we sometimes have to determine who was married (or divorced), or who was somebody’s parent, or was somebody legally adopted, or whatever became of somebody who has gone missing.

Rarely a dull moment!

Every case has a story, a set of facts that answer the question “What is this about?”

That is always the first question. The first question I ask a new client. The first question I address when telling an associate or paralegal about a new matter, and the first question Judges ask whenever you appear in court.

In the past few years I’ve been focusing on probate and estate administration cases. I always had a few in general practice, and was surprised how much I liked them. Sometimes when I tell people I do “probate and estate administration” they say “Oh, estate planning?” Well….no, the cases I have are usually the ones where they didn’t do any fancy estate planning, and then….they died. This turns out to be most cases where people die, and most people do need professional assistance to get things done and completed efficiently.

It is also sufficiently complicated that not every lawyer is trying to get into it (I like to think it’s because of the complexity, but perhaps other lawyers find it distasteful). I find it challenging and not distasteful. There is something satisfying in bringing a successful conclusion to someone’s affairs.

In these situations, the initial answer to “What is this about?” is always the same….

“So-and-so died, and then……”

Thus begins a probate and estate administration case. In New York, probate means there is a will, estate administration means there isn’t. Either way the dead person’s assets are going SOMEWHERE. Ah, but where, and how, and who is involved, and what’s going to happen?

Although the stories all start out the same (somebody died, and then …), after that it is never the same. Sometimes it all falls into place, everybody is lovey-dovey, and it’s just a matter of knowing what papers to file. Sometimes these cases are dysfunctional family feuds, with acrimony and bitterness that would humble the worst matrimonial case. If contested matrimonials involve anger, jealousy, and other toxic emotions, contested estates have that and more. It is not uncommon to find a range of emotional issues among numerous family members (generally the children of an older person), where none of it has been openly discussed for many years. Then, the dreaded unspoken thing happens (so and so dies….), and now all the things that have not been talked about MUST be talked about. It would be easy to say these cases all come down to money, and many do, but it is also money infused with deep-seated emotional and psychological issues.

I stopped doing matrimonial cases many years ago, precisely because I did not like being involved in such bitterness. One of the things I hated about matrimonial cases was, they never ended. The parties were always coming back for more. Estates are not like that. Even when they are bitter, at some point they end, the dead remain dead, and the living move on. And no matter what they did during the case, as they fought over their relatives money, none of them are getting out of here alive either.

Sometimes people actually realize this during the case and make peace. Sometimes not, but it’s nice when that happens.

Many lawyers deal with Surrogates Court only peripherally.  Questions about Estates and Surrogates Court come up often enough that it is worth knowing the basics. Here are 10 things worth knowing, even if you never set foot in Surrogates Court.

1. The Surrogate Court Clerk’s offices are broken down into departments:

– Probate (Wills and will contest issues)
– Administration (Appointment of fiduciary when there is no Will)
– Accounting (Issues concerning distribution of the Estate, a/k/a “fighting over the money”)
– Guardianship (protection of minors, personally and financially)
– Miscellaneous (all kinds of proceedings: entering an apartment, getting into a safe deposit box, removing fiduciaries, and more)

2. In probate cases there is a presumption that an attorney drawn and supervised will was validly executed. In a contest the burden of proof is on an objectant claiming improper execution. A non-attorney supervised will does not get this presumption, so the burden is on the proponent to prove proper execution. Sometimes this is a BIG hurdle.  Note to any LegalZoom Will customers – Think about the above before you “save money” doing it yourself!

3. To the extent any beneficiary in an Administration (intestacy) proceeding does not waive the requirement of the fiduciary posting a bond, the proposed fiduciary must post a bond in proportion to the beneficiaries interest. VERY often proposed fiduciaries are not able to qualify for a bond.

4. If there is a delay in a probate or administration proceeding, and something important needs to be done (like selling a house or co-op), it often makes sense to obtain “preliminary letters”. It costs some money and requires a bond, but in the end it can save the Estate a lot of money.

5. Contrary to what many clients think, death does not absolve an Estate from creditor’s claims. A fiduciary must address claims they know about or had reason to know about. There are a lot of rules and caselaw on this, but the bottom line is fiduciaries do better when they address claims pro-actively. There are also some claims (funeral, administration expenses, taxes) which take priority over general creditor claims.

6. When a proceeding is filed to open a safe deposit box to search for a Will, the box is opened in the presence of a bank officer. The contents are inventoried, and if a Will is found it is delivered to the Court. If a box is being opened after a fiduciary is appointed, the bank officer should not observing. The fiduciary has a right to open the box on their own.

7. Nothing substantive can happen on a Surrogates Court proceeding until “jurisdiction is complete”. This occurs when all the interested parties have either signed a Waiver or been served. In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice. This is true even if they are not named in the Will.

8. Whenever an interested party can’t speak for themselves (some examples are minors, disabled people, missing people, or “unknowns”) the Surrogate appoints a “Guardian-ad-Litem” for them. The Court fixes a fee for the Guardian-ad-Litem after they file a report, and they are paid out of the Estate. I’ve heard cynics question this, but in my view, this procedure is absolutely essential. I have served as a Guardian-ad-Litem many times, and take these assignments very seriously.

9. Estates worth under $30,000 (with or without a Will) can be handled under a simplified proceeding under Article 13 of the SCPA (Surrogates’s Court Procedures Act). These are designed to be handled without an attorney. Most clients can handle these on their own. Such an appointment enables a person to collect up to $30,000. However, they would not be able to sign a deed or transfer real estate with this type of appointment.

10. First cousins can inherit under intestacy, but generally they can’t become fiduciaries. In “cousin cases”, the Public Administrator is the fiduciary. These Estates ultimately become “kinship cases”. This is a fascinating specialty within Surrogates Court practice.

Sometimes Surrogates Court seems like it’s own little world. It has many unique rules and procedures. All of these are designed to ensure fairness and prevent premature or improper distributions. Once one gets the hang of it, it starts to make sense. Most of the time, anyway.

Sometimes I resort to unusual methods to solve a problem.

Recently I had two people in my office who were involved in a difficult estate situation. They were two of five adult children who had inheritance rights.  So, to a degree they were united in interest.  The guy was the Executor and a one fifth beneficiary. The woman was his youngest sister, also a one fifth beneficiary, who was living in the late Mom’s house.

I knew the Executor was under a lot of pressure from the other siblings to “get her out of the house and sell it”. They weren’t wrong, but he had never been firm with his baby sister.

When they came in she seemed quite comfortable with the situation as it was, and thought we were there to discuss how we (she, brother and I) would deal with the others.

I didn’t like thinking that brother wanted me to do what he should have, but I could understand his reluctance. His sister was fragile and he cared about her more than the sibs cared about her. He knew he should have been clear with her before, but he hadn’t done it.

It’s stupid to have a meeting where the most important issue is not discussed. I tried to get him to say what needed to be said, but he wouldn’t (or couldn’t) do it.

After awhile I said to them “You know, this may be a situation where I want to use the Cone of Silence, do you know what that is?”  She said “It’s that thing Maxwell Smart wanted to always do when he talked the The Chief”.  Yup.  If you’re not familiar, here’s a Youtube link https://www.youtube.com/watch?v=vsNR9FnxOdY.

I said to her “What I always found funny about the Cone of Silence is it doesn’t really work because other people can hear, but Maxwell Smart felt he could talk openly in there. If we use the Cone of Silence, I will speak openly about some important things. Are you OK with that?”


“OK” I said. “I am activating the Cone” …. and I made some mechanical sounds and some hand motions to indicate we were in the Cone of Silence.

I then looked her in the eye and said “Now that we are in the Cone of Silence what I want to say is this….While your brother does not like the way the others are acting, he very much wants you to leave the house. He doesn’t want to have to evict you, and he has been praying that you don’t force him to do that.”

Then I stopped, slowly raised my hands to indicate that the Cone of Silence was lifted, and said
“The Cone of Silence is off now.”

He was crying.

She finally understood.