In New York, the statutory and procedural guidelines of the state must be followed to complete probate of a will. Estate planning can reduce complications that may drag out the process and can be effectively handled with the help of legal counsel. The original will, a petition to the court, a copy of the death certificate and other relevant documents must be filed with the New York Surrogate Court in order to begin the process.  Granting probate is the first step in the administration of a person’s will, so their wishes and division of assets can be accomplished.

Major hurdles for the efficient administration of a will includes lost will documents, or when someone contests the Will for lack of due execution, forgery, lack of testamentary capacity, or undue influence. Under New York law, will challenges have legal limitations to assure  that a person’s estate plan will be protected. There are common objections to wills that can be successful including:

Lost will, or outdated version.

Original wills may be misplaced, or codicils to a will may not be available, leaving the court to decide what is valid, but it must be established that the will was not revoked, execution was proved, and the provisions of the will are clearly and distinctly proved by at least two credible witnesses, or a copy of the will proved to be true.

Lack of due execution.

This is an when a will was written and signed without adherence to the New York’s specific requirements for signing a valid will, to include witnesses and attestation clauses.  There are occasions where nuncupative, or holographic wills are made, but they are subject to scrutiny in accordance with New York Law EPT, Section 3-2.2.

Forgery.

When an individual claims that the signature on the will is not the decedent’s, and consideration is made when attorneys were not involved in the drafting or signing of the will, or unethical individuals are involved.

Lack of testamentary capacity.

This claim is based on the fact that the testator did not know what they were doing when they signed their will, perhaps in cases of Alzheimer’s, or other temporary altered states due  to medical treatment, or sickness.

Due execution.

 The initial burden is on the proponent of the will to show that it was duly executed in accordance the New York State statutory requirements . The court also has the independent obligation, even when no objection has been filed to determine that the will was duly executed. In cases where the will’s execution was supervised by an attorney there is a presumption of compliance and most wills contain what is called an attestation clause which describes what happened, who was present and what was said in a manner intended to comply with the statute. The inclusion of such a clause constitutes prima facie evidence of due execution.

Undue influence.

When it is proposed that the testator signed the will under influence, or pressure from another party and that the will was not the true intention of the person signing it, but a product of their inability to resist the influence.

Seek legal counsel.

Contact Attorney Ron Meyers with questions regarding estate planning that will eliminate potential hurdles in the probate and administration of a New York Will. 

 

Ron L. Meyers & Associates, PLLC

Address:  475 Park Avenue South, Suite 2100

Manhattan, NY 10016

Phone: 212-644-8787

 

Sources:

https://www.nysenate.gov/legislation/laws/EPT/3-2.1

https://www.nysenate.gov/legislation/laws/SCP/1407

https://www.nysenate.gov/legislation/laws/EPT/3-2.2

 

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