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 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”.