WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”.  Their assets go to “family members” under the State’s laws of intestacy.  So, the question any sane person with assets should be asking is “Who would inherit from me if I don’t make a Will”.

If the answer to that question is not what the person would want, THEY SHOULD MAKE A WILL.

Which leads to the question….WHY DON’T THEY???

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?

WHY…..when people who have “nobody to leave my money to”, why don’t they make bequests to friends?  or charities?

WHY…..do some people put off doing something they know they SHOULD do?

Here are 10 reasons I’ve seen:

  1. Procrastination as a way of life.
  2. Fear of tempting the evil eye.
  3. Not being able to decide who should inherit (or waiting to see who deserves it.)
  4. Not wanting to spend ANY money to take care of this “discretionary” item.
  5. Not wanting to discuss their personal business and/or finances with anyone.
  6. Thinking they’ll do it later, “when they need to”.
  7. Under valuing their assets…this usually happens when there is a house and no liquidity.
  8. Thinking they have all their assets passing directly, so a Will would be moot.  Sometimes this is true, but usually not.
  9. Guilt related to what departed persons (parents or grandparents) would think about what they want to do.
  10. Simply being a selfish, self-centered narcissist who doesn’t care what happens when they are gone.

One could probably write a book, or at least a blog post, about each of these.  I will not do that here.  I will simply note that each of these reasons raise questions that anyone who has ANY of those thought patterns ought to consider,along with my initial question “Who would inherit from me if I don’t make a Will” AND “How would that result sit with me for eternity IF I DIED TOMORROW”?

Eternity is a long time.

 

Sometimes people write down their wishes or give written directions regarding what they want done after they die.  Sometimes they even call it a Will.

Will these be considered a Will?   NO

Sometimes people who would benefit from such writings ask me, as a lawyer, to bring these writings to the Courts attention.  They are essentially saying “Surely the Court will give SOME weight to the deceased person’s written statements.”  Will I make this argument?  NO

In New York, the only writings that will be considered a Will are those that fit the definition of a Will.  Briefly stated, “signed at the end in front of two witnesses”.

Not one witness.

Not “notarized”.

Can LegalZoom and other home made Wills qualify as Wills?  YES, if they meet the definition of a Will.  Most home made wills, where people have researched how to do it, actually turn out to be Wills.

But many attempts to make a Will, or related attempts to give directives after a person dies, FAIL.

When I see this, especially when the attempt looks legit, it’s pretty tragic. Sometimes it’s tragic because of the amount of money involved.  But even worse is the idea that the person wanted something done which would help somebody they cared about, and it isn’t going to happen.

I won’t take a case where we would be trying to make something a Will that isn’t, or try to convince the Court to do “the right thing”.  My advice in those cases is to tell the client to contact the people who benefit from the writing not being a Will and ask THEM to do the right thing.  Oh…and be nice when you ask.  Does this ever work?  Rarely, but when reasonably nice, honorable, ethical people are involved, sometimes they work something out.

More often though, such situations result in a hurt that lasts a lifetime.

In consideration of the above, if someone wants to “get their affairs in order”, they should do it right.  If you know someone in that situation and they need help, by all means HELP THEM.

Do I think the right thing is to encourage them to have a lawyer help them?  YES  But even a LegalZoom will or an effort where you try to get it right is better then a signed “letter”.

If you can’t find a lawyer who is affordable for this, look harder.  Many lawyers are willing to do basic Wills for surprisingly low fees.

I’ll go one further…..If someone fairly local needs a Will and is in the hospital, or confined to home, if they are able to tell me what they want, I WILL MAKE A HOUSE CALL TO GET THIS DONE.  It’s that important.  I know I am not alone in this approach.

Every time I do this, I know I scored a plus one in the cosmic karma of the universe.

So I got THAT going for me…which is nice.

 

If a fiduciary (in NY it’s an “Administrator” if no Will and “Executor” if there is) has to file an Accounting, where should they start?  What should they do?

The Answer is to know what you should have been doing all along, and if you haven’t been, get caught up as much and as quickly as possible.   Here’s what you should have been doing:

  • Collecting the decedent’s assets and depositing into an Estate bank account.
  • Addressing any creditor claims.
  • Filing tax returns when due and paying any taxes that might be owed.
  • Communicating to the interested parties about what is going on.

Does everyone do all these things perfectly?  Not always.  But if you have to account it should not be difficult to start catching up.  Not only that, if catching us is going to take some time, I’d suggest being open about it by disclosing to the beneficiaries exactly what is going on and how you are addressing it.

I have been using an expression lately that fits here:  “The fact that I should have already done something is no reason not to do it”.  Start doing it.  Collecting assets, dealing with creditors, dealing with taxes and communicating with beneficiaries IS the job.  It takes time and some persistence to do these things.  Just do what needs to be done.  If you need help, get help.  But get it done and communicate.  It’s way worse for everyone when you don’t.

Will some people second guess you?  Maybe, but that’s part of the job too.

For all these things to do, you should have your records and back-up.  If you got a little disorganized, or don’t have all the records, it just takes some time and effort to get what is missing and then organize it.  For many reasons, assets are sometimes hard to locate or difficult to collect.  Most beneficiaries understand this, and most of these problems ARE solvable.  I suggest fiduciaries try to solve these problems, but many times I do get involved as an attorney.  If this costs the estate a few bucks, beneficiaries understand this.

Creditor claims can be tricky and time consuming, but a fiduciary should not ignore them.  Every case is unique when it comes to creditor claims.  You have to factor in the nature and size of the claims, the number of claims, the known assets in the Estate, and know your settlement leverage, whatever it may be.  At the very least, I like to review this issue with the fiduciaries and have a strategy.

Most accountants do a fine job with filing income and estate tax returns for Estates. Common sense says avoid tax season for this if you can.  Accountants are happy to work on these estates when they are less busy.  If you don’t know an accountant, or don’t want to use your own, ask your attorney to refer one.  As a fiduciary, what you never want to do is have tax returns filed late.  When this happens, it’s your fault and you could be liable for any penalties an interest.  One of the reasons to collect assets quickly is have the Estate liquid enough to pay estimated taxes and avoid penalties.  I’d rather a fiduciary over pay an estimated tax and get a refund, than to incur penalties and interest later and be personally on the hook.

This brings up an important point.  When I am an attorney for a fiduciary, who is my client?  Am I the “attorney for the Estate”, as is often said?  I never refer to myself that way.  I consider myself the attorney for the fiduciary, in that capacity. That’s why I give the advice referred to above – I view my role as advising the fiduciary to act correctly in their role.

Finally, when communicating with the other beneficiaries, one should be conscious of any appearance of a conflict of interest.  This becomes clear when, as is often the case, the fiduciary is also a partial beneficiary (ie – the Estate is to be split 4 ways and the fiduciary has a 1/4 interest).  Your communication should always make your role clear, and you should be blatantly non-preferential towards yourself.  You’ll be entitled to you Executor’s fee off the top, and reimbursement of your expenses, plus your beneficiary share.  I want to make sure you get all that if that’s what you want.  (Sometimes fiduciaries do reduce or waive their fee, but that is a personal decision)

It is often said that the best way to settle a possible lawsuit is to prepare as if you would have to prove everything at trial.

When you have the goods, and you show that you did it right, these things resolve.

And if they end up in Court despite this, you are ready.

When someone is a fiduciary (Executor or Administrator) of an Estate, they are accountable to the people who have an interest in the Estate.  This includes the beneficiaries.  When they are doing their job correctly, they are transparent, honest, and communicative.

What if they aren’t doing those things?  What if they are being secretive, or doing things that don’t seem right?  Or are doing nothing?

Sad to say, these things happen with some frequency.

The remedy in New York is filing a “Petition to Compel an Accounting”.

This is a Surrogate’s Court proceeding which causes a Citation to be issued to the Fiduciary, directing them to appear in Court and file a formal accounting (or otherwise explain why they haven’t yet).  As in any Surrogate’s Court proceeding, the person asking for relief (the Petitioner) files a Petition which explains what’s going on.  It’s a pretty simple Petition, “I am a beneficiary in the Estate of Smith. Joe  is the Administrator.  It has been more than 7 months since Joe was appointed, and he has not accounted.  Make him file an Accounting”.  The wording is a bit more legal, but essentially that’s what it says.

Why 7 months?  That’s the time period for creditors to file claims, so generally we don’t expect a fiduciary to account before that time.

The “Petition to Compel” is served on the Fiduciary.  When the Fiduciary appears in Court in response to the Citation, the Surrogate generally asks a few questions:

  • Have you filed an Accounting yet?  If so, the “Compel” proceeding is over.  If not, the next question is “why not?”…
  • There are all kinds of answers, but no matter the explanation, the next question is, “when can you get it done and filed?”
  • Depending on the response, the next question will be “Are you willing to consent to an Order directing you to Account?” The answer should be yes, and then…
  • How long will you need?  The choices are usually 30, 45 or 60 days.  People sometimes ask for longer, but they better have a good reason.

The Court will then note for the record what the Fiduciary has agreed to, and then ask the Petitioner (the one who asked for an Accounting) to “Settle an Order”.  This means the Petitioner (or their attorney) will submit an Order for the Judge to sign that directs the fiduciary to account by a certain date.  Submitting this order is an important step because the time doesn’t start to run until the Judge signs the Order. If it seems strange that the litigants (or attorneys) have to submit the Order for the Judge to sign, I’d say “Welcome to law practice”.

When the Fiduciary files their accounting, this is a new proceeding.  That means their Petition and Accounting gets filed with the Court, with Citations issuing to all interested parties.  This is its own proceeding, where objections can be filed and the REAL issues are addressed.  I will cover this in a future post.

One more thing about compelling an accounting.  What if the fiduciary agrees to account, consents to an Order, an order is signed, and they STILL don’t account. The next step is a Petition for Contempt of Court.  Why is it “contempt”?  Because the person has violated a Court order.  Are fiduciaries ever put in jail for such things?

YES!!!

When things reach that point, they usually do what they are supposed to do.  Sometimes that’s what it takes.

And, sometimes at the outset you suspect it will be that way.  That’s why you get to ball rolling with the “Petition to Compel”.

When I start representing someone who is about to become a Fiduciary (Executor or Administrator) of an Estate, I always talk about “how an Estate finishes”.  Like many things in life and business, if you know where you are trying to go it is much easier to make a good plan to get there.

Not every State handles “estate completion” the same way.  There are two basic approaches:  mandatory accounting vs non-mandatory accounting.

In a mandatory accounting State, there is some proceeding that must be filed so the the Court knows the Estate has been completed and the fiduciary has done what they are supposed to do.  This generally involves filing forms and paying a filing fee, and there are generally time constraints (so if it is not ready to be completed you have to explain why).  I’m not going into more detail because New York (where I practice) is NOT a mandatory accounting State.

In a non-mandatory accounting State, the fiduciary is not required to file anything with the Court to show that the Estate is completed.  This raises two logical questions:

  1. What SHOULD fiduciaries do to complete an Estate and protect themselves?
  2. What happens in New York if there is some issue or problem in completing the Estate?

What a fiduciary SHOULD do is keep good records, communicate regularly with the beneficiaries in a transparent way, file any tax returns that are required, and then….SEEK TO COMPLETE THE ESTATE WITH AN INFORMAL ACCOUNTING.

This is done by showing the beneficiaries what has been done.  This can be done with a letter, or on a spreadsheet, or in any way that shows a bottom line for a proposed final distribution.  With this informal accounting we would send a document called a “Receipt & Release”.  This document essentially says “I know what you did as Fiduciary and I agree it was correct and I agree with the bottom line and I release any claims I may have about this”.  The letter to the beneficiary makes clear that when the Receipt and Release is signed “then you will get your money”.

What if the beneficiaries don’t agree?  Or don’t respond?

While New York is not a mandatory accounting State, the Surrogate’s Courts have an Accounting Department, and there is plenty of law on how one CAN file a formal Accounting Proceeding.  Unfortunately, this happens a lot.  The Accounting Department is where the action is, and most of the really acrimonious disputes are there.

In a nutshell, when a Fiduciary wants approval for what he has done, or what he is proposing to do to complete the Estate, a formal accounting is filed with the Court.  The Court will then issue a Citation to the interested parties, which essentially says “Fiduciary has filed the attached accounting and is asking the Court to approve it.  Come to Court on (date) or a Decree will be issued approving the Accounting.”

If a beneficiary gets such a Citation and wants to dispute something, they come to Court and file Objections to the Accounting.  This then becomes a case, like any other civil litigation….discovery, motions, conferences, etc.

Generally, an expensive, nasty mess.

Which is why it’s better to do a good job as fiduciary and find a way to account informally.

Next post – what if you are the beneficiary and the Fiduciary doesn’t account (formally or informally)…. at that point it’s a “Petition to Compel an Accounting”

 

There are two types of Surrogate’s Court Petitions that often give a lot a value. These are:

Petition to Compel Production of a Will and Petition to Compel an Accounting. These are proceedings that can be used when you are trying to get things going and nothing is happening.   Not only are these petitions relatively easy to bring, they force recalcitrant players to come to Court and/or hire lawyers.  Very often these elements advance a situation and hopefully create momentum to get the matter resolved.

When you are in the right, sometimes the best thing that can happen is your adversary gets an attorney.  When this happens, there is now somebody other than you and me telling the adversary they are wrong.  Sometimes people need to hear it from someone they trust.  Also, the reality of what it will cost to pay a lawyer to defend a bad position is often a big incentive to start negotiating.

PART 1 – Petitions to Compel Production of A Will

I will make some references to New York law, but I dare say there are similar proceedings in most (if not all) States.  For our discussion here, I am primarily interested in the practical and tactical issues in these types of proceedings.

What do we do if someone has died, some time has passed, we know/believe there is a Will (and we believe we know who has it), but for some reason they are not doing anything with it?  There are reasons someone would act this way.  It pays to think about why.  If the person is living in the  decedent’s house, almost anything they do will make their financial situation worse.  Sometimes the person doesn’t have the financial ability to retain an attorney and pay the Court filing fees.  Sometimes they are paralyzed by emotions.  Sometimes they just don’t know what to do.

Of course, sometimes we know what’s in the Will we are looking for and sometimes we don’t (we just know/suspect there IS a Will).  Hard as it might be, you have to find out.

In any event, we need to get the Will filed because until that time, nothing positive can happen and problems just become bigger problems.

Factored into this, sometimes, are situations where a client may have the right to file under intestacy and become the fiduciary (in NY this would be an Administrator).  However, it’s a bad situation when you do the work and pay the fees as if there’s no Will, and then some knucklehead wakes up and files the Will. Just to add another challenging scenario, what if you had inheritance and/or fiduciary rights under an earlier Will…so that if there is no later Will the Will you have would be IT.  Prior wills raise all kinds of issues and problems.

I try to stay away from legal talk and Citations, BUT, the applicable law is pretty clear…

A Petition to Compel the Production of a Will can be brought under Surrogate’s Court Procedure Act (SCPA) sec 1401.  SCPA 1401 says….

“Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized under the succeeding section of this act to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises. Service of the order must be made by delivery of a certified copy thereof to the person or persons named therein either personally or in such manner as the court shall direct. The court may either in the order or otherwise in the proceeding require the production and filing in court of any will of the decedent which it finds is in the possession or under the control of the respondent. The court may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil.”

So, the Court is authorized to order people to “attend and be examined” regarding Wills they might have.  You start the proceeding with the intention of convincing the Court to issue a Citation directing a person to bring the Will to Court and possibly be examined (questioned under oath).  Per the statute, when the Court signs the Order, a certified copy of it must be personally served (though the Court can fashion alternate means of service if there is a problem).

The person gets served with a Citation, directing them to come to Court at a certain date and time and Answer the Citation.  The most frequent result is that when you Answer the calendar in support of the Petition, the person who was served comes up to the bench, says “Here”, and hands over the Will.  When this happens, this particular proceeding is done.

The ball is then in someone’s court to file a proceeding regarding the Will.  At least now, with the Will filed in Court, if the person doesn’t do anything, YOU CAN.  If they try to snooker you after you Petition, by saying they are named in the Will, you have great grounds to object.  “Look how irresponsible they were, look at conflicts of interest, look what they cost the Estate, etc.”

Sometimes the person gets an attorney and they file the probate papers and get things moving.  If this happens, you got what you needed…something is happening.

Sometimes people come to Court and deny they have a Will.  In this case it pays to consider what questions you might ask this person on the record, which may be pertinent to finding the Will or establishing there isn’t one.

Sometimes people get served with the Order and don’t show up.  The remedy, and this applies to any ignored court orders, is to file a Contempt Proceeding. Are people ever brought into Surrogate’s Court in handcuffs for violating a Court Order? YUP, I have seen it many times.  Also, receiving the Contempt paper saying they are going to be arrested if they don’t show, often has the person come in with the Will and say “Uh, here.”

A few New York Surrogate’s Court notes:

You should check whether the particular County’s Surrogate’s Court does these Petitions in the probate department or the misc. department (yeah, it’s really called that).

Like many proceedings, you have to prepare a proposed Order.  When you serve the Order, since it must be certified you need to ask whether it needs to be Court certified or whether an attorney can certify.  Also, the Affidavit of Service must state that a certified copy was served.

In the statute, where it says “sua sponte”, this means “on its own”.  So, if there is a Court proceeding going on and the Court thinks there is a Will out there, it can issue an order sua sponte (even without someone filing a Petition).  I saw it happen once.

The filing fee for a Petition to Compel Production of a Will is $20.

Coming Next – Part 2 – Petition to Compel an Accounting

Comments and questions always welcome!

 

 

 

Sometimes in Surrogate’s Court proceedings there are parties who have an interest in the proceedings but for some reason they cannot legally participate.  This can occur in any type of proceeding:  Probate, Administration and Accounting are the most common.  A party is considered “interested” if the proceeding affects them in some way.  In order to proceed with ANYTHING in Surrogate’s Court, you have to have “jurisdiction” over interested parties.  What this really means is you have to show the Court that the party was legally notified of the proceeding, and they either agree, object or take no position.  Bottom line though, the Court has to know they were notified and given the opportunity to be heard.

In a probate proceeding, the Court must have jurisdiction over anyone who would inherit under intestacy, since these are the only people would would have standing to object.  In an Administration proceeding (no Will), we need jurisdiction over all the inheritors because someone is asking to be named as Administrator, a right that the inheritors also have.

The problem is sometimes the people you need jurisdiction over either cannot consent, cannot legally be served with a notice, or cannot be found.

Here are a few common examples:

  • Minors – in New York a person under age 18 is cannot legally sign a Waiver or object to a proceeding that affects them.
  • People who are mentally or physically disabled.
  • People who are incarcerated.
  • People whose whereabouts are unknown.

If someone fitting any of the above categories is identified as having an interest in a Surrogate’s Court proceeding, the Court will appoint a “Guardian-ad-Litem” (Latin for Guardian for the litigation).  These Guardians represent their ward’s interest in the case and report their findings to the Court.  If they have a basis to file Objections on their ward’s behalf, they are empowered to do it.  Guardian-ad-Litems are usually attorneys who practice in the Surrogate’s Court.  At the conclusion of their service, they file a Report which includes a statement of the time spent, for which they request the Court to set a fee.  This fee is paid by the Estate.

I have been appointed Guardian-ad-Litem many times.  I take the assignments very seriously, and am honored that the Surrogate has the confidence to appoint me. Although many times the reports are pro-forma and state that things are all in order and there is no basis to object, by no means is it always a rubber stamp.  I have filed Objections MANY times, and very often these cases are quite interesting.

For example, I am currently Guardian-ad-Litem in a case where an Administrator was appointed, then found a Will among the decedent’s possessions, which was filed with the Court.  However, they did not try to probate the Will because the Will had writing on it, apparently in the Testator’s handwriting, saying “This Will is no good”. The Will also had sections crossed out.  The Will named a non-family member as the sole beneficiary.  The Administrator took the position that the Will had been “revoked” by the writings on it, and proposed to pay all the money to the decedent’s estranged son.  The Administrator claimed they did not know where the named beneficiary was.  The Surrogate appointed me Guardian-ad-Litem for the beneficiary.   I filed Objections on my wards behalf, because in my opinion it is arguable this Will was not properly revoked.  I then tried to find my ward (who the Administrator claimed they could not find), and within an hour I found her!  I don’t know yet how this will turn out, but at least now the issues can be fairly decided, with all the interested parties being heard from.

I have certain steps I follow when I am appointed Guardian-ad-Litem.  Among the things I do are review the Court file, contact the Petitioner’s attorney and discuss the case, contact my ward (if appropriate), contact other interested parties if necessary, research legal issues, participate in Court proceedings, file a report and any supplemental reports the Court may require.

Anyway, the above are the basics.  In future posts I will discuss other specific Guardian-ad-Litem situations.

If a person dies without a Will, and the closest relatives are aunts, uncles and first cousins, do they inherit in New York?

The answer is YES, but there are some special rules. Aunts, uncles and cousins can inherit if there is nobody in the prior inheritance classes (spouse, kids, parents, siblings, nieces or nephews).  Here are just a few of the special rules:

  • Usually first cousins are not permitted to serve as Administrators of an Estate. The Public Administrator (in the 5 boros, Nassau, Suffolk and Westchester) generally serves as Administrator in cousin cases.  In the other Counties the tax assessor acts as Administrator.
  • In cousin inheritance cases the Estate is divided into two halves, the maternal and paternal sides.  In a cousin case we must look at the status of aunts/uncles/cousins on the decedent’s mother’s and father’s side of the family.  As an example, if there is one cousin on the father’s side and ten cousins on the mother’s side, the paternal first cousin gets 50% and the ten maternal cousins split 50% ten ways.  Life is hard sometimes.
  • First cousins once removed (children of first cousins) can only inherit if there are no other first cousins on either side of the family.  First cousin once removed cases can be tough.

When the Public Administrator handles an Estate, they do anything and everything that a typical family member Administrator would do. They sometimes arrange burial, they clean out apartments and houses, they search for a Will, they receive mail, they sell houses or apartments, they marshal accounts and assets, they deal with claims of creditors, they file tax returns, and ultimately they try to figure out who is legally entitled to receive the inheritance.

When they reach the point where an Administrator would ordinarily pay the money to the heirs, the Public Administrator will file an “Accounting Proceeding”. Essentially, they set forth for the Court what they have done, detailing all the money taken in and paid out, and ask the Court to approve the way they have handled the money and the claims, and to approve fees for their attorneys.  The final thing the accounting proceeding requests is a determination regarding WHO is entitled to receive the balance of the money. The Public Administrator does a kinship investigation, so they generally list (and notify) the people they believe are the cousins. However, in the Accounting Proceeding they refer to the cousins as “alleged” cousins.

When cousins receive a Citation in an Accounting Proceeding where they are called “alleged” first cousins, they should retain counsel and file Objections with the Court.  Attorneys who do this type of work will generally agree to work on a contingency fee basis.

This is the beginning of a “Kinship Proceeding”.  In a kinship case, the cousins have to prove who they are, and thereby claim and ultimately receive the money. This is not as simple as it seems. Not only do the cousins have to prove who they are, they have to DIS-prove prior inheritance classes AND show how many cousins there actually ARE. The proof in these cases consists of testimony and certified documents.  Typically it is necessary (and certainly helpful) to use a genealogist to prepare a family tree and obtain the necessary documents.

Proving negatives creates some special challenges.  In future posts I will address many of the techniques that are used to prove kinship.

For the people who die and create these cases, or for the friends or family who WOULD have been included IF the decedent had made a Will, these cases are often kind of sad. For people who are notified out of the blue that “your cousin so and so died, and you may have inheritance rights”, not so sad.  In law school they called these “laughing heirs” cases. Law students probably think these never actually happen, but they actually happen pretty often.

Next post – “Proof and Nuance in Kinship Cases”

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.

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.