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!

 

 

 

Basic definition – A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other asset for another person.

When doing Wills or handling Estates, we are often talking about fiduciaries.  A person who is named as Executor of an Estate, or who is appointed as Administrator of an Estate (in a no-will situation) is a fiduciary.  What does this mean?  Why is understanding this so important?

I usually explain it this way – “A fiduciary has a higher level of responsibility than an individual.  They are responsible to look out for the interests of everyone who has an interest in the thing they are the fiduciary for.  If there is a conflict between an individual’s interest and their responsibility as a fiduciary, they must exercise extreme caution and make sure they fulfill their fiduciary responsibility before looking out for their individual interests.”

Very often a person named as Executor in a Will (who will therefore become a fiduciary) is also a beneficiary.  Is there an inherent conflict of interest in this?  YES, but this is not a prohibition against doing it, it is simply something to heed at all times and to work through carefully.

On the surface, we can see that if a Will names one child of four as Executor, and splits the Estate equally among the four, the Executor should divide the Estate equally and not make their own share higher, or pay their share earlier than the others.  That’s easy.

But there are often others the Executor/fiduciary has obligations to, like creditors and tax authorities.  What happens if the Estate owes taxes, or if a creditor claim arises within the permitted time?  Let’s add the fact that the Executor has marshaled the assets and wants to do right by the other beneficiaries, so he pays them their full shares.  Lo and behold, a timely creditor claim against the Estate pops up but the Estate funds have already been paid out to the beneficiaries.  Guess what?  The fiduciary can  be held personally responsible for breaching their fiduciary responsibility!

Being a fiduciary can often be a difficult and stressful job.  In New York an Executor or Administrator is entitled to be paid a fee for their work.  The fees (called “commissions”) are roughly 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, and so on.  It can add up to some money, but most would tell you, they EARNED IT.  I have to agree.

A few observations about fiduciaries….

  • Selecting an Executor via a Will is a VERY important decision.  Sometimes even more important than naming beneficiaries.  Naming successor Executors in a Will is also very important.  These people will be fiduciaries, so make sure they are up to it.
  • When an Estate is being handled well, usually it’s because the fiduciary understands their responsibility.  When an Estate is not being handled well, or when someone has an issue with the way things are being handled, a “breach of fiduciary responsibility” is generally at the core of any claims.
  • In an Estate Administration (no Will), when people are fighting over who should be appointed fiduciary, they either don’t understand the fiduciaries’ role, or they are fearful that the others don’t.  I have seen this scenario MANY times.
  • The best ways for fiduciaries to avoid problems are to have clear and transparent communications with the interested parties and to keep great records.  Other than outright stealing, nothing will put a fiduciary in a worse position than secretiveness and lack of communication.  I counsel client fiduciaries to be pro-active in communicating with the other interested parties.  I can’t say they always follow my advice, but I KNOW it is the right advice.

I may have given a few practical reasons to do things right, but there is a bigger reason.  If someone named you as Executor, it’s because they TRUSTED YOU.  As difficult as the fiduciary role can be, it is an “honor bestowed”.   That alone ought to be enough for a person behave as a fiduciary should.

If you are that person, remember that.  If you are making a Will, choose someone who will get that!

What happens if someone involved in an Estate is dead?  These situations are very common.  A few standard approaches apply….let’s look at a few situations:

The most important distinction to know is that PRE-deceased situations are very different than POST-deceased situations.  When I refer to “PRE” and “POST” I am talking about when the person died in relation to the decedent (the one whose Estate we are talking about)

The basic rule is that POST-deceased persons do not lose their rights.  Generally, the interest a post-deceased person had in an Estate now belongs to THEIR Estate.

A quick example – A widow with three adult children dies with no Will.  Her heirs would be her three adult children.  Some time passes and no action is taken in this woman’s Estate and then one of her adult children (let’s make him a son) dies. What are the shares in the widow’s estate?  It would be one-third each to the two living children and one third to the heirs of the post deceased son.  Those heirs would be determined either by the son’s Will, or if he had no will, by HIS heirs under intestacy.  Let’s give the post-deceased son a spouse and 4 minor kids, and no will.  So now, his one-third interest will be divided within his Estate under intestacy ($50K + half to the spouse and the other half among the minor children).

Wait, it gets worse…..if we want to move forward with the widow’s Estate, we can’t even get started until we get jurisdiction over the post-deceased son’s estate.  That is, we have to establish the post-deceased son’s estate before we can even move forward with the main estate.  It is not unusual to process a post-deceased estate BEFORE you can even do the main Estate.

Pre-deceased situations are different.  Let’s take the above example and make the adult son pre-deceased.  In that case, the widow’s Estate would go one-third to each of the the two surviving children and one-third split among the 4 grandchildren.  The daughter-in-law would be OUT.  (Note – in a post-deceased situation she would be IN for a meaningful share).

I have been involved in Estate with multiple “estates within estates”.  These complexities must be addressed or nothing can move forward.

There are a few important lessons in all this:

  • Estates should be addressed promptly.  For various reasons things can get delayed.  I have seen situations where nobody did anything in an Estate for 20 or 30 YEARS!  This usually happens when the only asset is a house, and nobody does anything because some family member is living in the house and then they die (or move, or need money).  But even in non-extreme situations, a delay of a few years due to procrastination creates complications related to post-deceased parties.
  • People should make Wills.  When people don’t make Wills, results are often a crapshoot.  In the predeceased child situation above, if the widow had a Will her wishes would be clear.  Maybe she would have left something to the daughter-in-law…it happens more than you might think.  Maybe she would have put her grandchildren’s funds in a trust and named an appropriate Trustee.
  • People should make Wills, Part 2.  If the post-deceased son above had a Will, it would have been clear what HE would have preferred, and I suspect it would have been 100% to his spouse…for her benefit and so she could take care of their children.  Having the inheritance going partially to the grandchildren is a horrible result, especially if they are minors.  The money would be tied up in Guardianships, with a ton of money wasted, to say nothing of the inconvenience and heartache.  Easily preventable, but a person has to be pro-active and make the Will.
  • When people make Wills, among the most important considerations are the “what-if” scenarios.  Well drawn wills reflect the persons intentions in case someone pre-deceases.  Wills that don’t do this leave too much to chance.

While “estate within estate” situations are more work than estates without this issue, it is a huge mistake to procrastinate.  These situations only get harder, and yes, there are cases with MULTIPLE estate within estates.  My own personal record is six!

If you are confronted with one of these situations, or if you want to prevent such a situation, please contact me.

When I do Wills for clients, I always discuss the option of doing Living Wills and Health Care Proxies.  I consider these so important, and so fundamental to proper practice, that I offer them at no additional charge.  Here are the basics:

LIVING WILL – This is a person’s written declaration that if they are in a hopeless situation, they do not want to be kept alive artificially.  Sometimes I say to clients “This is like that Florida situation from a few years ago, where the woman was in a coma and the husband was feuding with her parents.”  For some reason, everyone seems to remember that case.  The basic forms for a living will provide for pain relief, but invasive life sustaining procedures not be undertaken. Having this all stated in writing makes it much easier for doctors, hospitals and families to know what to do…or not do.

When I state the option, most people opt for it, but not all.  I have not editorial opinion on it.  When people express a strong opinion that they want a Living Will, the sentiment is usually “If I’m hopeless pull the plug, I don’t want to suffer and I don’t want my family to suffer.”  When there is a strong opinion not to do it, it’s usually along the lines of “These things should be in G-d’s hands”.  I never argue.  My informal data suggests that when this option is suggested, people say to do a Living Will about 90% of the time.

HEALTH CARE PROXY – This is different than a Living Will, but crucially important.  A health care proxy designates someone to make health care decisions if you are not able to make the decision.  This would be a “not hopeless” situation.  My usual quote is “A health care proxy comes into play if you are in a coma, but not hopeless, and the risky ‘xyz’ procedure MIGHT help, but who will decide whether to do it?”  The health care proxy gives someone, usually a trusted family member, the responsibility to decide.

I always include the designated person’s cell phone and home #.  Hey, if we need to reach the person quickly we better be able to.  Sometimes people want to have two people have the responsibility together.  I am not a fan of this, but will do it if clients insist.  I often name one person and a successor or back-up.

Obviously, being designated a Health Care Proxy is a big responsibility, so the decision on who to designate is important.  I had some first hand experience with this, and I often relate this to my clients, to illustrate its importance.  Bottom line:  my Dad had named me his health care proxy and unfortunately ended up a a very serious medical crisis where decisions had to be made.  My step-mom and I were not in agreement on what should be done and when, but I had the health care proxy which enabled me to be clear to the doctors and the hospital that I was the one designated to make decisions.  I took the time to investigate ALL the options, and discussed them with her and other family members.  I had made a painful decision that I was comfortable with, but thankfully I did not have to actually implement it because my Dad regained consciousness, lived another two weeks, then passed peacefully (This was in 2010).  The reason I tell this story is to impart that not only did I feel I had honored my Dad’s wishes, but that in the short time he regained consciousness, I told him what had transpired.  In fact, his last words to me were “I’m proud of you”.

Health care proxies are VERY important!

When I am discussing the possible preparation of a Will, I ask a series of questions that follow a general framework.  This tends to bring all the issues to the surface in a logical way.  I respect that people often want to just “tell me what they want the Will to say”, and that very often they have put serious thought into it.  I usually then ask if they would be OK if I asked questions in my preferred order, as it tends to bring out EVERYTHING, including the things I am sure they want to tell me.  Most people are fine with this.

I call my approach the WHO, the WHAT, and the HOW.

WHO – I start with a pretty detailed family tree.  I don’t go back to the Mayflower…what I am looking for is establishing who are the “distributees”, that is to say “who would inherit if this person died without a Will?”.  As mentioned in earlier posts, this is very important because even if those people are not in the Will you have to get jurisdiction over them during probate.  All my will files start with a little family tree diagram.  I get the names, the relationships, the ages, and make note of anything pertinent the client tells me.  Of particular interest are people in the tree who are minors, or disabled, or missing, or elderly.  I make note of pertinent details about them.  During this part of the interview I usually have a sense of what is going on and who is “involved” and who isn’t.  Since the people on the tree are likely to be discussed as the interview proceeds, I can now refer to them all by name and with some clarity as to who they are.  When I have enough family information, I draw a line on my notepad and say….”This concludes the WHO portion of the program, let’s move on the the WHAT”.

WHAT – In this section I make clear that while I don’t need to know every account and asset down to the penny, I do need to know WHAT we are talking about.  I specifically want to be clear about what assets the Will will affect and what assets it won’t.  For example, Wills don’t generally change things like life insurance beneficiaries, or bank accounts with beneficiaries.  This must be looked at carefully because, and I actually say this to clients “I once did an Estate where the drafting attorney did not ask about these things, and there was a horrific result”.  In that case a man did a Will and left everything to his sister, who was his closest relative. However, his biggest asset was a retirement account where he had named a beneficiary, a girlfriend from 20 years ago where there was a bad break-up…Orders of Protection, death threats, etc.  Guess what? – the ex inherited $400K, and there is no doubt that if the drafting attorney had asked, the client would have been told to change the beneficiary. He surely thought a Will leaving “everything to my sister” would do the job.  It didn’t.  So now, I always ask

I also ask about things like title to real estate, and if it’s within NYC I check it on ACRIS (the City’s e-recording system).  Many times we find surprising things and address them.

I basically inquire about the title to any meaningful assets and make notes about it.

And then at some point I say “Now we are done with the WHAT, lets move on to the HOW, as in HOW DO YOU WANT THINGS TO TURN OUT”

HOW – At this point I ask the clients how they want things to go, what is their idea about who should get what?  It is a good idea for people to have thought about this before we speak, and most have.  An interesting question is often whether to do things in terms of dollars or in terms of percentages.  Generally the smaller bequests (if any) should be in dollars, and the broader ones (often called the “residuary bequests”) should be in percentages.  At this point I ask questions that many people have not thought of, which is a series of “what if” questions.  Things should not be left to chance, so we then get into the sometimes uncomfortable “what ifs”.  What would happen if “so and so” dies before you, which is something we ought to provide for.  I don’t take this to ridiculous extremes, but I do go pretty far into it.  Strange things happen, and as long as we are doing a Will, I do not leave these things to chance, especially if someone has a strong opinion, like “if x dies before me, I do not want y to get his share”.  I make sure this is covered.

Also very important in the HOW section is naming Executors and if applicable, Trustees.  The Executor is the person who takes care of the Estate after a person dies. They get the Will probated, marshal the assets, pay expenses and taxes, and make sure the Wills terms are carried out,  Naming an Executor is a VERY important decision.  Co-Executors are permitted and sometimes appropriate. Naming a successor Executor (another what-if) is also important.  Trustees come into play if the Will is establishing aTrust, which would usually apply for a minor or a disabled beneficiary.

Obviously, the above is just a framework.  If the discussion leads to more details about particular issues, of course we explore them.

Funny thing though, when I follow my outline and we reach the end and I ask “Is there anything else?” most of the time the answer is “Nah, we covered it, what happens next as far as preparing and signing the Will?

And so it goes.

Next post – “Living Wills & Health Care Proxies”

 

Sometimes family members feud.

Sometimes it’s irreparable (in the eyes of the participants…..I would always beg to differ, but that’s another story).

Sometimes thoughts of money and mortality will lead a person to take action.

So they make a will….with one main purpose…..to make sure that “X” doesn’t get anything.  Sometimes there are related purposes, to make sure that “X” gets the message, or knows what (s)he missed out on, but the theme is often the same…….”X” gets nothing.

I’ve done a lot of wills like this. In these situations, you want to minimize the possibility of a will contest in the future. Sometimes the will-maker’s main problem with “X” is “he’s the kind of person who would contest a will”. The solution is something called an “in terrorem clause”.  Sounds pretty cool…..here’s how it works. You leave “X” enough of a bequest to make it interesting, and add a clause that says effectively “If after my death “X” takes ANY steps to contest this will, he will get ZERO”. People who are so inclined generally love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave “X” something in the Will.  Clients invariably say “So leave him $10″….but that’s not the way to do it, because “X” would have nothing to lose. A better approach would be to leave “X” a bequest of say, $10,000 or $25,000, in a million dollar estate, and let him have to deal with it.

Sometimes people don’t want to do an in terrorem clause, they simply want to leave “X” nothing, and minimize “X”‘s chances in a will contest.  If someone is being left out, I always suggest that the Will specifically refer to them. It can be as simple as “I intentionally make no provision in this Will for “X”, and this is not due to an oversight”. Some people go further and say something more…..”I leave “X” nothing because he…..whatever.” Another phrase clients have requested, more than once, is “I leave nothing to “X”, for reasons which are well known to him.” I didn’t like it, but the clients wanted it and I did it. I always wondered if “X” really knew the reasons.

If there are potential issues regarding the will-makers competency, additional practical steps must also be taken to ensure the Will will stand. These would include using the best witnesses possible, keeping the language of the will as clear as possible, keeping detailed notes, and making sure it is documented that the attorney/draftsman met with the will-maker ALONE.

There are legal provisions for video-taping a Will, but for many reasons I have never done it. Imagine having the “out-takes” being subject to discovery in a will contest?

Why all the fuss about possible will contests? Consider this…..attorneys can (and frequently do) take will contests on a contingency fee.  I have done this, IF I think I have a good shot at knocking the Will out.  There are often high stakes, where the will beneficiaries may get nothing (or much less) if the Will gets tossed.  Guess which ones I pass on?  The one’s where good steps were taken to thwart a contest.

With this in mind, and if the possibility of a will contest is being considered during the will drafting process, steps can and should be taken to protect the Testator’s wishes.

Who REALLY ought to make a Will?

If you are considering whether you need to or not, the answer to this question starts with a question…..

“Who would inherit from you if you did not make a Will?”

When I interview someone who is considering making a Will, the first issue I explore is THAT.  There is a good reason I start with “who would inherit if you do not make a Will?”   It lets me know who the “players” are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes surprised when I start off questioning them about their closest family members, especially when what they want me to know is “I don’t want those people in my Will”.  This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will is considered an “interested party” when the Will is being probated. Legally, we call these people “distributees” or people who are “adversely affected” by the Will. They are the only people who will have standing to contest a Will.  If it’s a close relation being excluded, say a child or a sibling, I always ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out.

I am amazed at how often people do not consider the question “Who would inherit from me if I did not make a Will?”  I frequently see this is Estates where there is no Will, and distant relatives are inheriting. Whenever I see this, often with meaningful money involved, I always think “Could they have intended THIS?”  Did they not have anyone, a friend, or a charity, that was more deserving than the distant relatives who are now inheriting?  I’ve seen cousins inherit who never even met the decedent!

Think this never happens?

I GET THESE CASES ALL THE TIME!!!

Truth be told, I frequently represent distant relatives in the inheriting position, when the inheritance is a major score for them. I like these cases, but at some point it always occurs to me (and it sometimes occurs to people who actually knew the decedent) “they should have made a Will”.

Very often in those cases people tell me “the decedent talked about making a Will”, or “he told me he was going to make a Will”, but for some reason they never did. I think there are several reasons for this….

Procrastination – a vague intent to do it in the future, and just not getting with it.
Superstition – a fear that doing it will cause illness or death.
Cheapness – not wanting to pay for a Will.
Delusions of immortality – more people have this than one might think.
Monumental inconsiderateness – totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family….say a married couple with children. There are good reasons for such people to make Wills too, but the fact is, the inheritance aspect is not so different making a Will than if they didn’t.  (To be clear, those folks should make Wills for other reasons)

People who don’t ask the question “Who would inherit from me if I did not make a Will?” are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. Business-wise, I don’t mind this all that much, these end up being my largest fee cases, but…..it sure is puzzling.

Maybe they “just can’t deal with it”, and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I’ve had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.

I will say this…..if the person has talked about it, and you think they WANT to do it, HELP THEM get it done. But, as we say in poker, don’t overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should make a Will doesn’t.

 

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.

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.