Are you looking for some practice points on submitting a Will for Probate? If so, here a few:
- Read the Will. Make a list of the people or organizations who inherit under the Will. Write down their names and addresses. You will need their contact information for paragraph 7 (or 7a if anybody is under a disability) of the Petition for Probate and Letters Testamentary (Probate Petition).
- Figure out who would inherit if there is no Will. Who was the decedent survived by? A spouse? A spouse and child? Parents? Siblings? Grandparents? Uncles/Aunts? Cousins? Write down their names and addresses. You will need this information for paragraph 6 (or 6a if anybody is under a disability) in the Probate Petition.
- Gather the original Will, a copy of the Will, a certified copy of the Death Certificate, and if possible, a paid copy of the funeral bill.
- Fill out appropriate forms.
You will need:
- a. Probate Petition.
- b. Either “Waiver of Process; Consent to Probate” (“Waiver”) for everybody listed in Paragraph 6 or a “Citation”. The Court needs to obtain jurisdiction over everybody who would inherit in the absence of a Will. These people have a right to come to Court and object or question the validity of the Will. The Court wants to know that the people who would inherit in the absence of a Will have been advised that there is a Will, have been advised that the Will is being submitted to the Court, and either affirmatively consent to the Court reviewing the Will and admitting it to Probate, or implicitly consent by not appearing and/or objecting on the date set forth by the Court. By signing a Waiver the individual affirmatively consents to the Will being admitted to probate, to the person nominated as Executor being able to serve as such, and consents to the jurisdiction of the Court. If a person chooses not to sign a Waiver, then the Court will issue a Citation. In a Citation, the Court indicates that the date and time that the Court will hear any objections to the admission of the Will. Anybody who has not signed a Waiver can appear on the return date of Citation and state their grievances with the Will. If nobody appears at the return date of Citation, then the Court will take silence to mean acceptance and will then further review the Will to determine whether legally it can be admitted to Probate.
- c. Notice of Probate for everybody listed in Paragraph 7. The Court wants the people and organizations named in the Will to be advised of what they will receive. For this reason, the Court asks that all people listed in the Will be sent notice of their interest. The person sending out the Notice of Probate will also have to sign an Affidavit of Mailing of Notice of Probate.
- d. Affidavit of Comparison. A disinterested person needs to sign an affidavit indicating that they have reviewed a copy of the Will and that it is the same as the original Will being submitted.
- e. Filing fee. The filing fee will depend on the value of the gross estate. The filing fee can be found by looking at Surrogate’s Court Procedures Act Section 2402. (Briefly, if the estate is between 50k and 100k, then the filing fee is $280; if the estate is between 100k and 250k then the filing fee is $420; if the estate is between 250k and 500k; then the filing fee is $625; if the estate is over 500k, then the filing fee is $1,250). If the estate consists of real property and there is a mortgage on the property, the value for purposes of the filing fee is the fair market value of the property, not reduced by the value of the mortgage. The value of the gross estate does not need to be exact; it can just be an estimate. The exact amount of the gross estate is needed for the filing of the Inventory, which is a document that is filed at the conclusion of the Probate.
- f. Proposed Decree. This is a proposed Order for the Surrogate to sign awarding the nominated Executor Letters Testamentary.
In addition to the above, you may need:
- a. Heirship affidavit. Generally, if the Decedent was survived by only one person, then you will need an affidavit from a disinterested party confirming that the Decedent was only survived by one person. Conversely, if the Decedent was survived by first cousins or more remote relatives, then you will need an affidavit confirming the relationship and that there are no other family members in the same class who have not been accounted for.
- b. Preliminary Letters Petition. Generally, if the estate consists of volatile assets or a business or if there is an immediate need to take action on the Decedent’s behalf, then the nominated Executor may want to petition for Preliminary Letters. These are letters which will allow the nominated Executor to take action on behalf of the Decedent (e.g. Pay bills, continue the business, shift investment strategies) but which do not allow for the nominated Executor to distribute any assets to the beneficiaries of the Will.
- c. 207.4(b) Certification. If you use the New York State Bar Association’s Surrogate’s Court forms, then you need to sign an affidavit stating that you have not modified the forms in any meaningful way.
- d. Additional Attorney Affirmations depending on the individual facts and circumstances of your case. For example, if the Will was unstapled, an Attorney may be asked to provide an affirmation regarding the circumstances surrounding the unstapling.
Additional resources provided by the author
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New York, NY 10038
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