In the last post I set forth a few “little things” that affect the probate process. These things impact the complexity, timing and expense that may be involved. Here are a few to consider:
1. A Will that is not attorney prepared and/or supervised. Putting aside possible lack of clarity with a non-attorney will, there are legal presumptions that apply to Wills that will later be presented for probate. The big one is that when a Will signing is supervised by an attorney, the legal presumption is that the execution (the signing part of it) was properly done. This can be overcome, but the burden is on the potential objectants. It is a heavy burden.
On the flip side, if the Will signing was not attorney supervised, the presumption of due execution does not apply, and the burden is on the Will proponents to show proper execution. This is a heavy (and dangerous) burden. It means the witnesses have to testify that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc). Nobody can actually remember the details of what happened, and very often big money is riding on some witnesses testifying correctly.
Contrast this with an attorney supervised Will signing. Now the objectants have a tough burden to overcome, since all the attorney has to remember about the signing ceremony is what their customary ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.
Sometimes when people are in Court with home-made or LegalZoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will. They now have a burden they would not have had if they had used an attorney.
To be clear on this….the above refers to the actual Will execution. Other grounds for objection (lack of capacity, undue influence etc) could still be pursued. That being said, it is really dumb to face “due execution” issues, when they could have been easily avoided.
2. Two witnesses and a witness Affidavit. The law in New York is TWO witnesses. Not one. Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will. This essentially says they were there, they signed, and everything that was supposed to be done, was done. It saves everyone from having to locate the witnesses years later. It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can’t locate them.
This witness affidavit stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don’t do this step. Very bad. Very inconsiderate to the people trying to probate the Will later.
3. Sometimes a person has a right to inherit, but before their inheritance rights are determined, they die. We call these persons “post-deceased”. A post-deceased person does not lose their rights, their estate has whatever rights they would have had. In Surrogate’s Court, an “estate within an Estate” is quite common. Sometimes, before we can proceed with an Estate we have to establish an Estate for the post-deceased person who has an interest in our Estate. Sometimes people wait years before setting up an Estate, usually because there was no pressing need to do it. Then, when they need to do it (usually because they want to sell a house that is still in the name of a deceased person), we have to do multiple Estates within Estates.
The probate and estate world is full of these “little things” that keep life interesting. Many of these potential problems can be avoided with skillful planning and/or professional preparation and execution of a Will. In reality, very often proper legal work has not happened, and we play the hand we are dealt. These problems can all be resolved, but they often take some persistence and time.