PROBATE PROCEEDINGS NYSBA Practical Skills Probate and - - PDF document

PROBATE PROCEEDINGS

NYSBA Practical Skills

Probate and Administration of Estates December 12, 2014

Stacy L. Pettit, Esq.

WHAT IS THE PURPOSE OF A PROBATE PROCEEDING?

 to establish a Will as valid and duly

executed; and

 to appoint a fiduciary to administer the

estate and carry out the terms of the Will.

WILLS ADMISSIBLE TO NEW YORK PROBATE

 A Will is a declaration of a person’s wishes as to

the disposition of his or her property, to take effect after death.

 The Will must be:

– in writing, signed by Testator, age 18 or older, – and executed and attested according to:

 The laws of New York State (EPTL 3-2.1); or  The laws of the place where executed; or  The laws of the place where testator was domiciled,

either when Will executed, or at time of death.

DUE EXECUTION OF WILL

 New York Will Execution Formalities (EPTL 3-2.1):

 1.

signed at the end by testator (or another in testator’s presence and by his direction);

 2.

in presence of (or acknowledged to) each witness;

 3.

Testator declares signed document is his Will to each witness; and

 4.

at least two witnesses sign name and address at testator’s request (within 30 days)

 Note: Attestation clause, witness addresses and

date are not necessary for Will to be valid.

PRESUMPTION OF DUE EXECUTION

 There is a presumption of due execution

when the Will execution is supervised by an attorney (see Matter of Kindberg, 207 NY220, 228

[1912] and Matter of Cottrel, 95 NY 329, 330 [1884]).

 Such a presumption was recently granted,

even where attorney was not admitted in NY State (see In re Sanger, NYLJ 1202663705852,

July 21, 2014, at 27 [Sur. Ct. Nassau County]).

 Based on attorney’s years of experience and

knowledge of the statutory requirements.

TESTATOR CAPACITY

 “Testamentary Capacity” for purposes of

Will execution is knowing generally, without prompting:

• Nature of the act performed (that it is a Will

execution);

• Nature and extent of assets to be disposed of;
• Names and relationship of persons who are the

“natural objects of one’s bounty” (distributees)

LOCATING THE WILL

 Will Search essential prior to application:

petition affirms that search has been done.

 Target searches: – Personal papers of decedent – Former attorneys – Trust company, bank or safe deposit box – Surrogate’s Court offices (even other counties) – Heirs or attorney-in-fact of decedent

Compel Production of Will (SCPA 1401) if necessary to discover existence of or require turnover of Will.

HOW A PROBATE PROCEEDING IS COMMENCED

Minimum Generally Needed:

– 1. Certified Death Certificate – 2. Original Will – 3. Affidavits of Subscribing Witnesses – 4. Verified Probate Petition – 5. Citation and/or Waivers of Citation for

Interested Parties

– 6. Notice of Probate & affidavit of mailing – 7. Filing Fee (based on estate size - SCPA 2402)

APPLICABLE LAW & FORMS

 APPLICABLE PROCEDURAL LAW:

– Surrogate’s Court Procedure Act (SCPA) – Estates, Powers & Trusts Law (EPTL) – Uniform Rules for Surrogate’s Court (NYCRR 207)

 UNIFORM FORMS FOR SURR. COURT:

– Greenbook

– HotDocs (NYSBA) or other software program

– Download : www.nycourts.gov/forms/surrogates – See Proceeding Checklists:

www.nycourts.gov/forms/surrogates/misc.shtml

JURISDICTION AND VENUE- WHAT COURT?

JURISDICTION: NY Surrogate’s Courts have jurisdiction over the Will

• f a decedent domiciled in NY, or of a non-domiciliary

with property located in NY. VENUE: Actual County where decedent was domiciled at time

• f death, or where a non-domiciliary left property

DOMICILE is the “fixed, permanent and principal home to which a person, wherever temporarily located, always intends to return.” (decedent’s choice where to live- but guardian may be substituted judgment)

DEATH CERTIFICATE

 Certified by issuing authority  Information on death certificate should be

consistent with proceeding:

– Domicile (venue – explain if different) – Date of death (state any reason for delay) – Marital status (red flag) – Cause of death (is there a wrongful death case?)

ORIGINAL WILL

 Examine Will prior to submitting to Court: – Will pages in correct order, none missing or

substituted (staple removal affidavit if nec.)

– Understand dispositive scheme in Will, and

who benefits from it.

– Pour-over to living trust (submit copy of trust) – Construction Issues -to be decided after probate – Alterations of Will (explain if before or after

execution and understand effect)

AFFIDAVITS OF SUBSCRIBING WITNESSES

 Without “self-proving” witness affidavits, actual

testimony is needed to prove due execution of Will.

 Witness affidavits (executed in compliance with SCPA

1406) are not copies of the attestation clause, but recite required minimum testimony regarding proper execution of the Will.

 Can be signed at execution or any time thereafter,

including after death.

 Actual testimony in person may still be required in

event of contested estates or question re: execution.

AFFIDAVITS OF SUBSCRIBING WITNESSES

 Generally state that: – Testator declared document to be his Will and

requested affiants to sign as witnesses to Will,

– Testator signed in their presence and they

signed in each other’s presence (or other acceptable alternative per execution statute),

– the testator was competent, of full age, and not

under any undue influence.

 Signed by witnesses before a Notary Public

PROOF AFTER DEATH IN ABSENCE OF AFFIDAVIT

 Must locate witnesses, and request signature of

affidavit - must be accompanied by Court-certified copy of Will or witness must see original Will.

 If one witness is dead, incompetent or missing

(SCPA 1405):

– if one (other) competent witness signs affidavit or

testifies, court can dispense with testimony of missing witness, where petitioner establishes missing witness cannot be examined due to death, incompetency or cannot be found within the state after due diligence.

PROOF AFTER DEATH IN ABSENCE OF AFFIDAVIT

 If both witnesses did not sign self-proving

affidavits and are now dead, incompetent or absent

(SCPA 1405), the Will must be submitted with:

 1) an affidavit as to the handwriting of the

testator, and

 2) an affidavit as to the handwriting of at

least one of the attesting witnesses,

 3) together with such other facts as would be

sufficient to prove the Will. Exception: Ancient Will (executed 30 years ago)

PROBATE PETITION

 Initial Information on Uniform Form:

• Title of proceeding/ Type of Letters requested
• P. 1: Petitioner’s name, domicile and citizenship

(whether an attorney and/or the draftsperson of Will)

• P. 2: Decedent’s name, domicile, date & place of death

citizenship of Para.

• P. 3: Date of Will, and names of Witnesses to Will and

any codicils

• P 4: Statement that there is no later Will, and no other

Will on file in Court

PROBATE PETITION

 INTERESTED PARTIES (Para. 5 & 6): – Distributees (Para 5 & 6) [who would take by

intestacy if Will not admitted to probate]

– Named Executor (Para 6) – All persons named in an earlier Will or Codicil

• n file with the Court, who are adversely

affected by a later Will or Codicil (Para 6)

– NYS Attorney General, where there are no

known distributees (SCPA 316) These parties must be served with CITATION if they do not WAIVE Citation (SCPA 1403)

PROBATE PETITION

DISTRIBUTEES - Paragraphs 5 & 6 (EPTL 4.1)

 FAMILY TREE needed (Uniform Rule 207.16) – where there is no, or only one, distributee – where relationship is derived through deceased

person, i.e. aunts & uncles, nieces & nephews (how related through to decedent, showing deceased relatives and issue in the tree)

– Affidavit should be by disinterested person  DUE DILIGENCE affidavit necessary for

unknown heirs (Uniform Rule 207.16(d))

PROBATE PETITION

 PERSONS ADVERSELY AFFECTED – Para 6

– If party is a: Beneficiary, Executor, Trustee or

Guardian named in the earlier instrument, and

– The later instrument reduces or eliminates

party’s interest in earlier instrument, and

– The earlier instrument is filed in Surrogate’s

Court in the county of probate

– Or: Exercise of power of appointment in Will

adversely affects persons in another instrument that created the power (copy of the other

instrument required – Uniform Rule 207.19(d))

PRELIMINARY LETTERS

 When any delay is expected in probate, i.e.

citation necessary, guardian ad litem necessary for person u/disability, etc. Only for named executor – not for administrator c.t.a. or for lost Wills.

 Generally available only after Will and probate

petition filed, and citation is issued. Ct. may issue preliminary letters before citation where affidavit filed that search for distributees is needed.

 Apply with probate. Complete application for

preliminary letters with oath & designation.

 Generally no additional filing fee over probate fee.

CITATION

 INTERESTED PARTIES who do not sign a

Waiver must be cited (see Waiver & Citation forms)

 Waiver Form (over 18, competent, acknowledged) – States copy of Will was received, consents to

specific Will being probated and executor appointed

 Citation Form – Leave return date blank (Court assigns date) – All cited parties on one citation – Service of parties is made by you after Court has

issued Citation and returned copy to you for service

– May or may not receive an order for service (if not,

service is made pursuant to Art. 3 of SCPA)

SERVICE OF CITATION

 SERVICE UNDER SCPA ARTICLE 3

 Personal service of a party served in NY State, at

least 10 days before the return date

 Certified mail return receipt or special mail

service (Fed Ex, UPS) on a party out of state but in the country, at least 20 days before return date

 Registered mail return receipt or special mail

service (Fed Ex, UPS) on a party out of the country, at least 30 days before the return date

 AFFIDAVITS OF SERVICE, STATING CITATION AND COPY OF

WILL WERE SERVED (W/ PROOF OF DELIVERY) TO BE FILED

PARTIES UNDER DISABILITY

 Enter in Para. 6(b) - not 6(a) - of Petition  Include info required in Note on Petition for party  Distributees or adversely affected parties who are:

– Under age 18 (“infants”) – Incompetent, incapacitated or confined to

facility

– Names or whereabouts are unknown

Cannot sign waiver & consent to probate

PARTIES U/DISABILITY MUST BE CITED

SERVICE OF PARTIES UNDER DISABILITY

 Infants (under 18 years of age) (SCPA 307(4))

– If over age 14, child himself must be served, as well as parent,

guardian or adult w/whom he lives

– If under age 14, only the parent, guardian or adult w/whom he

lives is served. If the parent is also the petitioner/executor, no service is necessary

 Incompetent, incapacitated or confined to facility

– Service on the party, as well as upon director of any facility in

which confined (In certain cases & courts, service by order may be made on designee or guardian ad litem)

 Names or whereabouts are unknown

– Service by publication of citation in one newspaper designated in

Court order, once a week for 4 consecutive weeks. 1st publication must be at least 28 days before return date (also serve AG)

RETURN DATE OF CITATION

 Is jurisdiction complete? If not, supplemental citation. If yes,

– Guardian ad litem appointed for any party under disability

 GAL stands in shoes of party unable to represent self.  investigates execution of Will and whether basis for objections to

probate.

 If no objections, report is filed by GAL, fee of GAL is set by court,

and probate proceeds. If objections, matter proceeds as contested.

– If competent adult or other party not u/disability fails to

appear, or appears with no objection,

 Probate proceeds

– If competent adult or other party not u/disability appears with

• bjections

 Matter proceeds as contested. Party may request examination of

witnesses (SCPA 1404), or proceed to file verified objections (w/fee)

PERSONS NAMED IN WILL

 Paragraph 7 of Probate Petition, & Notice of

Probate are for non-parties w/interest under Will:

– Successor executors, trustees, guardians, legatees,

devisees & beneficiaries named in Will (other than those already listed in Para 6)

– If non-party under disability, list in Para 7(b) – Persons and entities in Para 7 get Notice of Probate

form to notify of their interest under the Will

– Notice of Probate is mailed to them, and copy is filed

with Court, together with affidavit of mailing

– If charitable beneficiaries are to receive a residuary or

trust bequest, NYS Attorney General is also listed in

P.7, and gets Notice of Probate (not if a general bequest)

PROBATE PETITION

 Estate assets in Petition Para. 9 (see SCPA 2402): – Include only Testamentary Assets (not joint or POD) – Estimated value of both personal and real property – Probate filing fee based on d/o/d estimated value:

 Under $10,000

= $45

 $10,000-20,000 = $75  $20,000-50,000 = $215  $50,000-100,000 = $280  $100,000-250,000 = $420  $250,000-500,000 = $625  $500,000 & over = $1250

 ASSET & INVENTORY form due 6 months after letters issued:

Balance of filing fee due then, if incorrect amt paid on probate.

PROBATE PETITION

 Wrongful Death cause of action (Para. 9(b) – Court will issue limited letters, so that appropriate

proceeding is commenced at time of settlement of action

 Request for Letters, date & signature of petitioner  Verification, Oath & Designation (signed by

petitioner [again] and acknowledged before Notary)

 Bond : – Not for named executor unless required by Will; – Is needed for testamentary trustee unless Will waives the

bond (SCPA 806)

 Probate Decree & Letters (Issued by Court)

OTHER THAN NAMED EXECUTOR, WHO MAY PRESENT PROBATE PETITION?

 SCPA 1402: the following may petition, without priority:

1. Any person designated in the Will as a legatee, devisee, fiduciary or guardian 2. Guardian of an infant or incompetent beneficiary 3. Creditor of the estate 4. Person entitled to letters of administration c.t.a. “with Will annexed” (when no named executor qualifies) (SCPA 1418) 5. Any person “interested” in estate [i.e., actual or alleged beneficiary - SCPA 103(39)] 6. Party to an action which decedent would be a party to if living

• 7. Public Administrator/County Fiscal Officer

WHO IS ELIGIBLE TO SERVE AS EXECUTOR?

 Letters Testamentary may be granted to natural person or

entity authorized by law to be a fiduciary (i.e. bank with trust powers)

 except those ineligible under SCPA 707, who are:

1. Infants 2. Judicially declared incompetents 3. Non-domiciliary aliens (except certain foreign guardians, or unless they serve as co-fiduciary with NY resident fiduciary) 4. Convicted felons 5. Those disqualified due to substance abuse, dishonesty, improvidence, want of understanding, or otherwise are unfit 6. Persons unable to read/write English, in Court’s discretion

ATTORNEY-EXECUTORS

 Need affidavit per Uniform Rule 207.16(e) re: who

drafted Will, who is acting as attorney, etc.

 Disclosure statement per SCPA 2307-a, signed by

testator, must be filed with probate petition, or executor is limited to ½ commissions if was draftsman of Will or affiliated with draftsman

 Note disclosure form changed 11/16/2004- if executed

after that date and old form used, probably limited to ½ commissions (Matter of Tackley, 13 Misc. 3d 818, Surr. Ct. NY County

2006)

 Must have fees and commissions fixed by Court

(usually requires a formal accounting)

LOST WILL PROCEEDING

 To probate a lost or destroyed Will (SCPA

1407), Petitioner must establish:

– The Will was not revoked by the testator, – The Will was duly executed, and – All provisions are clearly and distinctly proved by at

least 2 witnesses or by a copy or draft proved to be true and complete.

– If in the possession of the testator prior to death, there

is a presumption of destruction by the testator that must be overcome. No such presumption exists where the Will was not in the possession of the testator or loss or destruction occurred after the death of testator.

THANK-YOU. I look forw ard to seeing you in Surrogate’s Court!