Probate Proceedings In New York
For well over a decade, the Law Offices of Michael Camporeale have been helping people with probate, wills and estates within the various New York City metro areas to include Bronx, Staten Island, Brooklyn, Queens, Long Island and Manhattan. Our attorneys are well-versed and experienced in the probate process and the administration of estates. We can assist you and your family with all of its probate and estate administration issues. Feel free to call us for a free consultation to discuss your particular probate or estate issue.
Probate is the process of proving that a decedent’s will meets the statutory requirements in the state of New York and that the will reflects the testator’s wishes. If a court is satisfied that the will is valid, then it will grant the probate and appoint fiduciaries in a probate proceeding. A fiduciary is a person who would be issued letters testamentary, and in an administration proceeding they would be issued letters of administration.
A will is a written instrument taking effect at death, meaning that it has no legal significance while the person is still alive. In New York, there is a broad process under the law that a testator is free to do as he wishes in his will, with the exception of a few minor prohibitions. Specifically, a testator cannot totally disinherit a spouse in their will. The will states how the property will be disposed of and who will be put in charge as an executor or fiduciary of the estate. A will can also include language to discuss how funeral arrangements will be made or how the body should be disposed of. Most importantly, a will discusses how a decedent’s property will be distributed.
A will is a revocable instrument that can be revoked during a person’s lifetime. That means that a person can draft a new will at any point in time. They can literally draft a will today, and then the very next minute draft a whole new will which would supersede the preceding will. The definitions of will also include codicils, which are supplements to the will whose function is to add, subtract, change, revoke or republish the original will. Although they are valid in New York State, as a practical matter, the Law Offices of Michael Camporeale believe that it is best to execute a new will and avoid preparing codicils. That is because they sometimes cause extra complexities and misunderstandings.
When executing a will, the testator obviously has to comply with strict New York formalities of execution. Probate is the actual process of proving the will after death. Since a decedent cannot explain their own versions of the estate plan during the probate proceeding, the court requires strict formality requirements in order to have a validly executed will. This should always be done with the supervision of an attorney because that will give the executed will a presumption of the necessary statutory formalities.
A will never enjoys any presumption in favor of its validity; it operates only after its admission to probate. The appointed executor under the will in the surrogate court is the person who will bring the will and offer it up to probate. A petition will have to be brought to court along with the original death certificate and accompanying attestation affidavits, which are generally attached to the will when the will is drafted. In order for the probate process to continue, the process will need to be served on all necessary parties in order to give them an opportunity to know the contents of the will and contest it.
If they wish to contest the will, they will have an opportunity to come in and file objections. The court would then decide whether or not the will is a valid instrument that was properly executed, and whether or not the testator had the mental capacity to draft the will free of any duress, undue influence or coercion. If the court feels that the will was validly executed and met the statutory requirements, they will grant probate and issue letters of testamentary. Letters of testamentary authorize the executor to administer the estate. If there were minor children involved in the estate, then the court can also issue letters of trusteeship and/or guardianship for those children.
Generally speaking, an administration is necessary when certain assets don’t have named beneficiaries on them. For example, for any bank accounts, securities or bonds that were only in the decedent individual’s name, probate would be necessary. If those particular assets did have a beneficiary named on them or were jointly owned with someone who is surviving on that account, then probate would not be necessary.
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