Chapter 3 PROBATE PROCEEDINGS

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Chapter 3 PROBATE PROCEEDINGS

Synopsis

PART A: PROCEDURAL CONTEXT

§ 3.01 Procedural Context—Probate Proceedings

PART B: INITIATING PROBATE PROCEEDING

§ 3.02 Checklist for Initiating Probate Proceeding § 3.03 Determining Who May Offer Will for Probate § 3.04 Preparing Probate Petition

§ 3.05 Filing Additional Documents Necessary for Probate

PART C: SERVING PROCESS AND NOTICE

§ 3.06 Checklist for Serving Process and Notice § 3.07 Preparing and Serving Citation

[1] Determining Who Must Receive Citation [2] Including Required Contents in Citation [3] Serving Citation

§ 3.08 Sending Notice of Probate

[1] Determining Who Must Receive Notice of Probate [2] Including Required Contents of Notice of Probate [3] Mailing Notice of Probate

PART D: NAVIGATING THROUGH PROBATE PROCEEDING

§ 3.09 Checklist for Navigating Through Probate Proceeding § 3.10 Obtaining Court Examination of Attesting Witnesses § 3.11 Excluding Attesting Witnesses from Examination by Court

[1] Excluding Attesting Witnesses from Examination by Court by Producing Self-Proving Affidavit

[2] Dispensing with Examination Where Attesting Witness Is Dead, Absent from State or Incompetent

[3] Ignoring Testimony of Hostile or Forgetful Attesting Witness

§ 3.12 Examining Interested Parties

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[1] Determining Who May Be Examined

[2] Determining Who Is Entitled to Examine Witnesses [3] Determining When Witnesses May Be Reexamined [4] Keeping Examinations Within Limited Scope [5] Determining Time and Place of Examinations [6] Recording Testimony

[7] Determining Responsibility for Examination Costs § 3.13 Proving Lost or Destroyed Will

§ 3.14 Proving Nuncupative or Holographic Will § 3.15 Filing Objections

[1] Determining Who May File Objections [2] Considering Form and Timing of Objections [3] Including Proper Allegations Within Objections

§ 3.16 Giving Notice and Serving Citation Upon Filing of Objections [1] Determining Who Must Receive Notice of Objections and

Citation

[2] Including Required Contents in Citation [3] Serving Citation

§ 3.17 Obtaining Decree

[1] Meeting Prerequisites for Issuance of Decree [2] Including Required Contents in Decree

PART E: OBTAINING LETTERS TESTAMENTARY

§ 3.18 Checklist for Obtaining Letters Testamentary § 3.19 Obtaining Letters Testamentary

[1] Determining When and to Whom Letters Testamentary May Issue

[2] Obtaining Supplemental Letters

[3] Renouncing or Failing to Qualify As Executor § 3.20 Obtaining Preliminary Letters Testamentary

[1] Determining If Preliminary Letters Testamentary May Issue

[2] Determining Who May Petition for Preliminary Letters Testamentary

[3] Preparing Petition for Preliminary Letters

[4] Meeting Other Requirements for Obtaining Preliminary Letters

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[5] Understanding Powers and Duties of Preliminary Executor

[6] Revoking Preliminary Letters Testamentary [7] Obtaining Commissions for Preliminary Executor § 3.21 Obtaining Letters of Administration, c.t.a.

[1] Determining If Letters of Administration c.t.a. Are Appropriate

[2] Determining Who May Receive Letters of Administration, c.t.a.

[3] Preparing Petition [4] Serving Citation

[5] Determining If Court May Refuse to Issue Letters of Administration, c.t.a.

PART F: INTERPRETING WILL PROVISIONS THROUGH

CONSTRUCTION PROCEEDINGS

§ 3.22 Checklist for Interpreting Will Provisions Through Construction Proceeding

§ 3.23 Obtaining Jurisdiction of Surrogate’s Court to Construe Will § 3.24 Determining If Construction May Be Made

§ 3.25 Bringing Contruction Proceeding [1] Initiating Construction Proceeding [2] Giving Notice

[3] Determining Choice of Law

PART G: DETERMINING VALIDITY OF ELECTION BY

SURVIV-ING SPOUSE

§ 3.26 Checklist for Determining Validity of Election by Surviving Spouse

§ 3.27 Considering Relationship Between Estates Powers and Trusts Law and Surrogate’s Court Procedure Act § 3.28 Obtaining Court Determination of Validity of Election

[1] Determining Who May Petition [2] Preparing Petition and Giving Notice

[3] Obtaining Jurisdiction over Property Not in Possession of Fiduciary

PROBATE PROCEEDINGS

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PART A: PROCEDURAL CONTEXT

§ 3.01 Procedural Context—Probate Proceedings

Probate is the process of proving and receiving court recognition that a decedent’s Will is valid. If the Will was executed in accordance with the law by a testator who was competent to make a Will and who was not under any restraint, then the court will admit the Will to probate as a valid Will for the purpose of passing real and personal property. See SCPA § 1408. SCPA Article 14 governs the probate proceeding, which begins when a petition to admit the Will to probate is filed with the Surrogate’s Court in the county where the decedent was domiciled at death. Procedures for proving a Will including requirements for the examination of attesting witnesses and for proving lost, holographic and nuncupa-tive Wills are provided.

In some instances, it may be inappropriate to offer a Will for probate. For example, if there are no probate assets, if a small estate administration proceeding would be sufficient to administer the probate assets that do exist or if disposition by the Will does not vary from what would occur by operation of law, then the Will should not be offered for probate.

SCPA Article 14 also provides for the following: procedures for the issuance of preliminary letters testamentary and letters of administration, c.t.a. (with the Will annexed); proceedings govern-ing the construction of a Will and proceedgovern-ings to determine the validity of an election by a surviving spouse.

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PART B: INITIATING PROBATE PROCEEDING

§ 3.02 Checklist for Initiating Probate Proceeding

M Determine who may offer will for probate. SCPA § 1402.

See § 3.03 below.

M Include required information in probate petition. SCPA

§ 1402. See § 3.04 below.

M File required documents with probate petition. See § 3.05

below.

Documents include death certificate, original will and codicils, copy of will and affidavit of comparison, affidavit of attesting witnesses, attorney certification, notice of probate, oath of testamentary trustees, filing fee, and self-addressed stamped envelope.

File waiver and consent for each party waiving service of citation.

File citation if there are necessary parties who have not signed waiver and consent.

File affidavit of heirship and family tree in certain instances. 22 NYCRR § 207.16

§ 3.03 Determining Who May Offer Will for Probate

Pursuant to SCPA § 1402, any of the following people may petition the Surrogate’s Court for probate of a Will:

1. A person named in the Will as a legatee, devisee, fiduciary, or guardian;

2. The guardian of an infant legatee or devisee;

3. The guardian, committee, or conservator of an incompetent or incapacitated legatee or devisee;

4. A creditor of the decedent;

5. The fiduciary of a deceased sole beneficiary or of a deceased residuary beneficiary; see SCPA §§ 1402(1)(b) and 1418; 6. Any person interested in the estate or the fiduciary of any

deceased person interested in the estate;

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7. Any party to any action brought or about to be brought in which the decedent, if living, would be a party; and 8. The public administrator or county treasurer, but only on

order of the court, provided that the Will has been filed with the court and a proceeding for its probate has not been instituted.

An interested person in the estate includes a beneficiary’s representatives, fiduciaries, assignees and a distributee taking under the laws of intestacy.

The court, either on its own, or on the petition of any person authorized to present a petition for the probate of a Will, may order any person reasonably believed to have knowledge of the where-abouts of a Will or destruction of a Will to appear in court and be examined. The court may also order that person to produce and file in court a Will of the decedent that is in the control of such person. See SCPA § 1401.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts § 41.02.

● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1401.01, 1401.02, 1401.03, 1401.04, 1402.03.

● New York Practice Guide: Probate and Estate

Administra-tion §§ 5.01, 7.01 (probate petiAdministra-tion).

● Second Report of the EPTL-SCPA Legislative Advisory

Committee, Leg. Doc. (1993), No. 2, pp. 26–27.

§ 3.04 Preparing Probate Petition

The probate petition must be verified and must satisfy the requirements of SCPA §§ 304 and 1402, including:

1. The name, citizenship and domicile of the petitioner and the decedent;

2. Additional names by which the decedent was known; 3. Date and place of death of the decedent;

4. A description of the Will and any codicil being offered for probate, and any other will of the same testator on file with 3–6 NEW YORK SURROGATE’S COURT

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the court, including the dates of execution and the names of all witnesses;

5. The name, relationship, domicile and mailing address of all parties required to be cited or to whom notice must issue, including distributees, legatees, devisees, fiduciaries named in the Will and persons adversely affected by probate of the Will;

6. If a party’s interest arises through the death of a primary legatee, a statement explaining the party’s interest and his or her relationship to the decedent and to the deceased legatee;

7. An estimate of the value of decedent’s probate estate that passes under the Will;

8. An affirmation by the petitioner that no other Will or codicil of the decedent is on file in the court and that after a diligent search no subsequent instrument was found; and

9. A verification of the petition, a designation of the clerk for service of process and, if the petitioner is also the nominated executor, an oath of the nominated executor.

t Warning: If beneficiary’s or fiduciary’s name at the

time of probate is different from the name listed in the Will due to either a misspelling, change of name, or otherwise, then an explanation regarding the name change should be included in the petition.

¶¶ 1402.01, 1402.02, 1402.05.

Administra-tion § 7.01.

● Bender’s Forms for the Civil Practice Form No. SCPA

1402:1 (Official Form P-1, Petition for Probate).

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● See Probate Proceeding Checklist (P-CHKLST),

Surro-gate’s Court Checklists, at www.courts.state.ny.us/

forms.surrogates/pdfs/fouth_checklists.pdf.

● See SCPA § 1402(2); 22 NYCRR § 207.16(a). § 3.05 Filing Additional Documents Necessary for

Probate

In addition to the petition, the following must also be filed with the court:

1. A certified death certificate. See 22 NYCRR § 207.15(b). If the petitioner alleges that the testator has disappeared and is believed to be dead, the Surrogate has the power, after having taken proof of the facts, to issue a decree determining that the individual is dead and admitting the Will to probate.

See SCPA § 1408(3). The court must first conduct a hearing

to review the search conducted for the decedent and the facts surrounding his or her death as prescribed by EPTL § 2-1.7. 2. The original will and any codicils. See 22 NYCRR § 207.19(a). If the Will offered for probate is on file in a court or public office and cannot be removed or must be returned to such other jurisdiction, the court may be satisfied with either (a) a duly certified or authenticated copy of the Will from the court where the original is filed, or (b) the temporary production of the Will by a representative of the foreign jurisdiction. See SCPA § 1404(2); In re Carter, 123 Misc. 2d 940, 475 N.Y.S.2d 230 (Sur. Ct. Yates County 1984) (admitting to probate a certified copy of a Will when original was on file in a Florida probate court). In such a case, the decree admitting the Will to probate must recite the full text of the Will. See SCPA § 1404(2).

t Warning: Practitioners should not remove staples from

an original Will when photocopying the Will. Evidence of the removal of staples creates a presumption of tamper-ing with the Will. If the staples are removed, the petitioner

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must provide the court with an affidavit explaining the circumstances at the time the probate petition is filed.

3. A copy of the Will and any codicils thereto along with an Affidavit of Comparison stating that the copy is a true copy of the original. See 22 NYCRR § 207.19(a) and Official Form P-13 (Affidavit of Comparison).

4. If the Will is in a foreign language, a court-certified translation of the Will.

5. A copy of any agreement creating a revocable trust to which the decedent’s assets are directed to be distributed pursuant to the terms of the decedent’s Will.

6. An Affidavit of Heirship with Family Tree. See 22 NYCRR § 207.16(c); Official Form FT-1 (Family Tree). If the decedent was survived by only one distributee or no distrib-utees, or if the distributees are grandparents, aunts, uncles, first cousins, or first cousins once removed from the dece-dent, the petitioner must provide the court with an Affidavit of Heirship and a Family Tree executed by a person who does not have an interest under the Will.

7. Affidavit of Attesting Witnesses. See SCPA § 1406; Offi-cial Form P-3 (Affidavit of Attesting Witness).

8. A copy of the trust document or other instrument creating any power of appointment exercised in the Will. See 22 NYCRR § 207.19(d).

9. Attorney Certification. See 22 NYCRR § 207.4(b). Official Surrogate’s Court Forms produced on computers or word processors must be accompanied by an affidavit by the attorney stating that all forms submitted to the court are the same as the official forms and that the substantive text has not been altered.

10. Affidavit of Sole Attorney/Fiduciary. See 22 NYCRR § 207.16(e). If an attorney is acting as the sole executor, the attorney must file an Affidavit of Sole Attorney/ Fiduciary stating that he or she is the sole executor and indicating whether he or she or the law firm with which § 3.05 PROBATE PROCEEDINGS

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he or she is affiliated will act as counsel. The affidavit must also state whether he or she was the attorney draftsperson of the Will.

11. Attorney Disclosure Acknowledgment. See SCPA § 2307-a. If the attorney-draftsperson is the nominated executor under the Will, the attorney-draftsperson must disclose to the testator that he or she may receive attorney’s fees as well as full statutory commissions for acting as executor. The testator must acknowledge such disclosure in writing and the written acknowledgement must be filed in court as part of the probate proceeding; otherwise, the commissions of the attorney-executor will be limited to one-half of the statutory amount.

12. Waiver of Commissions. If the nominated executor has agreed to waive statutory commissions in whole or in part, or if the Will restricts commissions, the nominated executor may be required to file an affidavit confirming his or her agreement to act subject to the agreed upon commissions or the commissions allowed by the Will.

13. Waiver and Consent for each party waiving service of citation. See Official Form P-4 (Waiver of Process; Consent to Probate).

14. A Notice of Probate together with proof by affidavit of the mailing of a copy of the notice to each party required to be named in the notice. See SCPA § 1409(2).

15. Oath of Trustee. See Official Form P-1 (Petition for Pro-bate). If the probate petition also requests that Letters of Trusteeship be issued under the Will, an Oath and Designa-tion of Trustee, executed by the nominated trustee, must also be filed with the petition.

16. Self-addressed stamped envelope. Depending on the county, the petitioner may need to submit a self-addressed stamped envelope to the court in order to receive a copy of the decree and letters testamentary. See Probate Proceeding Checklist (P-CHKLST), Surrogate’s Court Checklists, at: www.cou-rts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.

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17. Filing Fee. See SCPA § 2402(7). The fee is based on the value of the decedent’s probate assets and must be filed with the petition.

Strategic Point: Most courts will not accept a personal check from the petitioner unless the petitioner is also an attorney. The attorney should bring any of the following: a firm check, money order or certified check for the filing fee and for any certificates of letters.

● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.11. ● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1404.05, 1404.06, 1408.05.

Administra-tion §§ 7.02, 7.10.

1402:1 (Official Form P-1, Petition for Probate of Will), Form No. SCPA 1402:6 (Official Form P-13, Affidavit of Comparison to Attach to Copy of Will), Form No. SCPA 1402:10 (Official Form FT-1, Family Tree), Form No. SCPA 1403:4 (Official Form P-4, Waiver and Consent to Probate of Will), Form No. SCPA 1404:1 (Official Form P-3, Affidavit of Attesting Witness).

● See Probate Proceeding Checklist (P-CHKLST),

Surro-gate’s Court Checklists, at www.courts.state.ny.us/

forms.surrogates/pdfs/fouth_checklists.pdf.

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PART C: SERVING PROCESS AND NOTICE

§ 3.06 Checklist for Serving Process and Notice

M Determine who is required by statute to be served with

citation. SCPA § 1403. See § 3.07 below.

M Prepare citation and file same with court clerk, who will

fill in return date and return for service.

M Serve process in manner required by statute. SCPA § 307.

See §§ 2.08–2.11 above.

M File proof of service with court.

M Mail notice of probate. See § 3.08 below.

Determine who is required to receive notice of probate. SCPA § 1409.

Prepare and mail notice of probate, and file copies of notice of probate and affidavit of mailing with court.

§ 3.07 Preparing and Serving Citation [1] Determining Who Must Receive Citation

Under SCPA § 1403(1), the following parties must be served with a citation:

1. The distributees of the decedent (that is, those who would inherit in the absence of a Will pursuant to EPTL §§ 4-1.1, 4-1.2 and 4-1.4);

2. The person or persons designated in the Will as the primary executor or executors, unless such person is the petitioner;

Strategic Point: A nominated successor executor need not be served with a citation unless the primary executor cannot act or fails to qualify.

3. The person or persons designated in the Will as a benefi-ciary, executor, trustee, or guardian whose rights or interests are adversely affected by any other instrument offered for probate that is later in date of execution;

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4. Any person designated as beneficiary, executor, trustee, or guardian in any other will of the same testator filed with the court whose rights or interests are adversely affected by the instrument offered for probate;

5. The decedent, if the petition alleges that the decedent is believed to be dead;

6. The state tax commission, if the decedent was a nondomiciliary;

7. The fiduciary of any deceased person to whom process is required to be issued, or if no fiduciary has been appointed, to all persons interested in the estate of such person; 8. The attorney general, if there are no distributees or if the

petitioner does not know whether any exist;

9. Any party adversely affected by the decedent’s exercise of a power of appointment in the Will; and

10. The public administrator in any case where not all of the decedent’s distributees are cited or where the distributees cited are related in the fourth degree of consanguinity or more remotely. See SCPA §§ 1123(2)(i)(2) and 1215(b).

Strategic Point: The name of every party who must receive a citation must be listed in paragraph six of the probate petition.

1402:1 (Official Form P-1, Petition for Probate of Will).

[2] Including Required Contents in Citation

Although a citation is technically issued by the court, the petitioner should prepare the citation for the court to issue and file it with the petition. The citation must state the following information:

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1. Name of the petitioner;

2. Name and domicile of the decedent; 3. Whether the Will is nuncupative;

4. Date of the Will and any codicils thereto;

5. Name of the party to whom a fiduciary appointment is to be made;

6. Where and when any person objecting to the probate of the Will may file objections (the return date); and

7. Any special relief being requested.

● See Bender’s Forms for the Civil Practice Form No. SCPA

1403:1 (Official Form P-5, Citation).

[3] Serving Citation

The clerk of the court will complete the citation by filling in the date and time for a return date, which will depend on the court’s schedule and on whether the parties to be served are within the State of New York and the United States.

Citation must be served by the petitioner in accordance with the rules of SCPA §§ 307 and 308 and the Uniform Rules for Surro-gate’s Court § 207.7. Service must include a copy of the Will and any codicils. See 22 NYCRR § 207.19. Proof of service by affidavit must then be filed with the court.

s Timing: Proof of service should be filed at least two

days before the return date and should state clearly the date, time, and place of service and the name of the person served. See Official Form P-7 (Affidavit of Service of Citation).

Any person who is over the age of 18, competent and required to be served with a citation may waive such service by executing 3–14 NEW YORK SURROGATE’S COURT

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a waiver and consent. Each person executing a waiver must be given a copy of the Will and any codicils. The waiver must state that a copy of the Will and any codicils to it were provided and must specify the date of the Will and codicils. See SCPA § 401(4); 22 NYCRR § 207.19; see also Official Form P-4 (Waiver of Process; Consent to Probate).

The court will appoint a guardian ad litem to represent any person required to be cited who is under a disability pursuant to SCPA § 403(2).

All of the rules of SCPA § 315 regarding virtual representation apply in determining who must receive citation.

t Warning: Because horizontal virtual representation is

available only if the Will so provides, it is unavailable in a probate proceeding because, as yet, there is no valid will.

● Warren’s Heaton on Surrogates’ Courts §§ 41.04–41.08. ● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1403.01 et seq.

Administra-tion §§ 6.03–6.05.

1402:1, Form No. SCPA 1403:1, Form No. SCPA 1403:4 (Official Form P-4, Waiver and Consent to Probate of Will), Form No. SCPA 1407:3 (Official Form P-7, Affidavit of Service of Citation).

● See § 2.17 above (virtual representation). § 3.08 Sending Notice of Probate

[1] Determining Who Must Receive Notice of Probate

If not otherwise notified of the probate proceeding through citation (or execution of a waiver), each of the following parties § 3.08[1] PROBATE PROCEEDINGS

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must be mailed a Notice of Probate. The notice makes the party aware of his, her or its interest under the Will but does not confer jurisdiction over the party:

1. Person named in the petition as a legatee or devisee; 2. Beneficiary of a revocable trust;

3. Trustee named in the Will; 4. Guardian named in the Will;

5. Successor executor, trustee, or guardian named in the Will; 6. The New York attorney general, if the Will contains a charitable bequest either to an unnamed charity or of an unspecified amount, including a residuary bequest; and 7. The party upon whom personal service of process is

re-quired to be made pursuant to SCPA § 307(4) and (5) with respect to any infant or incompetent required to receive notice of probate.

See SCPA § 1409.

Exception: Although not required by statute, many courts will require that the New York attorney general receive notice of probate even if the only charitable bequest is that of a specific dollar sum to a named charity.

The name of every party who must receive notice of probate must be listed in paragraph seven of the probate petition.

If an interest under the Will is given to a class of persons upon the happening of a future event, it is sufficient to give Notice of Probate to only those persons in the class who are already in being at the time of the decedent’s death. See SCPA § 1409(1)(a) (which parallels SCPA § 315(2)(a)(i)). If an interest under the Will is limited to a party who either has been named in the Notice of Probate or has received or waived citation, and such interest is further limited, upon the happening of a future event, to a class of persons described in terms of their relationship to such party, notice of probate need not be given to the class. See SCPA § 1409(1)(b) (which parallels SCPA § 315(2)(a)(ii)).

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1402:1 (Official Form P-1, Petition for Probate of Will).

[2] Including Required Contents of Notice of Probate

The Notice of Probate must include the following information: 1. Name and domicile of the decedent;

2. Date of the Will and any codicils thereto;

3. A statement that the Will has been or will be offered for probate;

4. Name and address of the petitioner; and

5. Name, address and nature of interest of each party required to receive notice.

1409:1 (Official Form P-6, Notice of Probate).

● SCPA § 1409(1).

Strategic Point: For the sake of privacy, the Notice of Probate should recite only a general description of each party’s interest, such as “general legatee.” However, the petition for probate must be more specific, for example “general legatee of $500.”

[3] Mailing Notice of Probate

A copy of the Notice of Probate must be filed with the court along with proof by affidavit of its mailing to each party required to receive notice. See SCPA § 1409(2).

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Strategic Point: The Official Form of Notice of Probate states that the Will either has been or will be offered for probate. Thus, the practitioner is advised to mail notices prior to filing the petition and file proof of mailing at the same time as the probate petition is filed, thus saving the need for a second trip to court. See Official Form P-6 (Notice of Probate).

¶¶ 1403.01 et seq., 1409.01, 1409.02, 1409.03, 1409.04.

1402:1, Form No. SCPA 1409:1 (Official Form P-6, Notice of Probate).

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PART D: NAVIGATING THROUGH PROBATE

PROCEEDING

§ 3.09 Checklist for Navigating Through Probate Proceeding

M Determine whether court must examine attesting witnesses.

SCPA § 1404. See § 3.11 below.

M Determine if Will includes a self-proving affidavit.

File self-proving affidavit to avoid examination by court of attesting witnesses.

Determine if there is any reason why Court might not honor self-proving affiant.

M If there is no self-proving affidavit, then obtain and file

affidavits of attesting witnesses. SCPA § 1406(1).

Request court to dispense with testimony of witness who is dead, absent from state, incompetent or forgetful.

M If original Will is lost, prove contents of Will. SCPA

§ 1407. See § 3.13 below.

M Offering additional proof to probate nuncupative or

holo-graphic Will. SCPA § 1404. See § 3.14 below.

M If representing potential objectant, determine if client has

standing to object. SCPA § 1410. See § 3.18[2] below.

M Decide whether to examine certain interested parties (that

is, attesting witnesses, drafter of Will, nominated executor, and Will proponent) before or after filing objections. SCPA § 1404. See § 3.12[1] below.

M File any objections to probate. See § 3.15[2] below.

On or before return date; By date directed by court; or

Within 10 days after examination of witnesses.

M Provide all parties who have appeared with copy of

objec-tions. See § 3.16 below.

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M If representing proponent of Will, file citation within 30

days after objectant files objections; serve citation. See § 3.16 below.

M Prepare and file draft decree for court to review and issue.

§ 3.10 Obtaining Court Examination of Attesting Witnesses

Generally, at least two of the attesting witnesses must be produced and examined by the court. See SCPA § 1404(1).

The proponent of the Will has the burden of producing the attesting witnesses, but the estate must generally bear the expense of producing them. See In re Westover, 145 Misc. 2d 469, 546 N.Y.S.2d 937 (Sur. Ct. Fulton County 1989) (holding that the expenses of taking the testimony of a subscribing witness by commission are borne by the estate).

¶ 1404.01.

§ 3.11 Excluding Attesting Witnesses from Examination by Court

[1] Excluding Attesting Witnesses from Examination by Court by Producing Self-Proving Affidavit

The attesting witnesses may make an affidavit attesting to the validity of the execution of the Will and the testator’s competency to make a Will. Either the testator or, after his death, the nominated executor, the proponent of the Will, or the attorney for the proponent of the Will may request such an affidavit from the witnesses. The witnesses must be shown either the original will or a court-certified copy. See Official Form P-3 (Affidavit of 3–20 NEW YORK SURROGATE’S COURT

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Attesting Witness). Such an affidavit will be sufficient to dispense with the testimony of the witnesses before the court unless objec-tions are raised to the probate of the Will. See SCPA § 1406(1).

Strategic Point: A self-proving affidavit should be used whenever possible, because it obviates the necessity of ascertaining dead or locating missing witnesses after the testator’s death. Practitioners should have the witnesses execute the self-proving affidavit at the time the Will is executed.

A self-proving affidavit may not be honored by the court if: 1. The Will contains changes or mutilations or the appearance

of the Will is otherwise irregular;

2. The testator was illiterate or unable to read English; 3. More than one Will was executed and not all counterparts

are produced;

4. The Will was executed within 90 days of the decedent’s death;

5. The attorney-draftsman or member of his family is a benefi-ciary under the Will;

6. The testator is blind or otherwise unable to execute a Will in the usual manner;

7. The execution of the Will was not supervised by an attorney; or

8. The testator signed with a mark instead of a signature.

Strategic Point: If all distributees have consented to the probate of the Will, many courts will allow a self-proving affidavit even if the Will was executed within 90 days of the decedent’s death.

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1406:1 (Official Form P-3, Affidavit of Attesting).

● In re Lipin, N.Y.L.J., Mar. 29, 1982, p. 13 (Sur. Ct. New

York County)

[2] Dispensing with Examination Where Attesting Witness Is Dead, Absent from State or Incompetent

If at least one witness has been examined, the court may dispense with the testimony of a second deceased or incompetent witness or a second witness who cannot, with due diligence, be located within the state and admit the Will to probate without additional proof. See SCPA § 1405(1).

If all of the attesting witnesses are dead, incompetent or absent from the state and their testimony has been dispensed with, the Will may be admitted to probate upon proof of both the testator’s handwriting and the handwriting of at least one of the witnesses and other facts necessary to prove the validity and due execution of the Will. See SCPA § 1405(4); see also Official Form P-9 (Affidavit Proving Handwriting).

The court will require proof of the unavailability of a witness by affidavit supported by a death certificate for each deceased witness. See Official Form P-8 (Application and Order for Dispens-ing with Testimony of AttestDispens-ing Witness).

If a witness is absent from the state but the witness’ testimony can be obtained by reasonable diligence, a party may demand that the witness’ testimony be taken by commission. See SCPA § 1405(2).

106:43 (Official Form P-8, Application to Dispense with 3–22 NEW YORK SURROGATE’S COURT

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Testimony of Attesting Witness), Form No. SCPA 106:44 (Official Form P-9, Affidavit Proving Handwriting).

[3] Ignoring Testimony of Hostile or Forgetful Attesting Witness

If an attesting witness has forgotten the execution of the Will or testifies against due execution and at least one other witness has been examined, the court may admit the Will to probate upon the testimony of just the one other witness and other facts sufficient to prove the validity and due execution of the Will. See SCPA § 1405(3). If both witnesses cannot remember the execution or testify against the Will, the court can admit the Will to probate provided there is sufficient other proof that the Will is valid. See

In re Collins, 60 N.Y.2d 466, 470 N.Y.S.2d 338, 458 N.E.2d 797

(1983) (holding that a Will may be admitted to probate despite the inability of attesting witnesses to clearly recall circumstances surrounding its execution).

● Warren’s Heaton on Surrogates’ Courts §§ 41.09, 41.10,

112.02, 115.07.

¶¶ 1404.01, 1404.02, 1405.01, 1405.02, 1405.03, 1405.04, 1406.01, 1406.02, 1406.03, 1406.04, 1406.05.

1404:1, Form No. SCPA 1405:1, Form No. SCPA 1405:5, Form No. SCPA 1406:2.

§ 3.12 Examining Interested Parties [1] Determining Who May Be Examined

Any party to the proceeding may examine:

1. Any or all of the attesting witnesses, either before or after the filing of objections;

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2. The person who prepared the Will either before or after the filing of objections; and

3. The nominated executors and the proponents of the Will either before the filing of objections if the Will contains an in terrorem clause or after the filing of objections, whether or not the Will contains an in terrorem clause.

See SCPA § 1404(4).

If more than one person was involved in the drafting, the person who met with the testator and took drafting instructions is consid-ered to be the person who prepared the Will. See SCPA § 1404(6). Nonparty witnesses, such as medical professionals who attended to the decedent, may also be examined pursuant to CPLR 3101(a) after objections have been filed.

[2] Determining Who Is Entitled to Examine Witnesses

Although SCPA § 1404(4) allows any party to the proceeding to examine a witness, generally the courts will limit the right to examine witnesses to those parties who are entitled to file objec-tions under SCPA § 1410. See In re Peckolick, 167 Misc. 2d 597, 639 N.Y.S.2d 675 (Sur. Ct. New York County 1996) (refusing to allow executor named in a prior will to examine witnesses because such party had no basis for filing objections).

[3] Determining When Witnesses May Be Reexamined

No person who has been examined under SCPA § 1404 may be examined again in the same proceeding under any other provi-sion of law except by direction of the court. See SCPA § 1404(4). In deciding whether to permit a second examination of a witness, the court will look at the following factors:

1. The inconvenience of the exam; 2. The location of the witness;

3. The amount of time since the previous exam; and

4. The prejudice to the objectants that would result from denial.

See In re Cesario, N.Y.L.J., Oct. 19, 1993, p. 32 (Sur. Ct.

Westchester County) (enumerating factors considered by court in 3–24 NEW YORK SURROGATE’S COURT

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determining whether to allow second examination of witnesses);

In re Seskin, N.Y.L.J., Dec. 23, 1987, p. 14 (Sur. Ct. Nassau

County) (allowing second examination of witnesses after consider-ing convenience, time, location and prejudice).

[4] Keeping Examinations Within Limited Scope

The scope of examinations under SCPA § 1404 is limited to those issues that are relevant to the validity and due execution of the Will. See SCPA § 1404(4). Issues regarding construction are not proper subjects for a SCPA § 1404 examination.

Absent the showing of special circumstances, the subject matter of examinations in a contested probate proceeding is limited to circumstances occurring within the three years prior to the date of execution of the Will and two years after. See 22 NYCRR § 207.27.

Prior to the filing of objections, all rights with respect to document discovery and, after objections are filed, all discovery rights granted under CPLR Article 31, are afforded the party conducting the examination. See SCPA § 1404(4); 22 NYCRR § 207.27; see also CPLR Article 31.

¶¶ 1404.01 et seq., 1408.01, 1408.02, 1408.03.

● Weinstein, Korn & Miller, New York Civil Practice: CPLR

Ch. 3101.

● LexisNexis AnswerGuide New York Civil Litigation § 6.01

et seq. (discovery).

[5] Determining Time and Place of Examinations

All examinations conducted pursuant to SCPA § 1404:

1. Must be conducted on reasonable notice to all attorneys, guardians ad litem, and parties entitled to notice under SCPA § 302(3);

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2. Cannot be conducted until jurisdiction has been obtained over all necessary parties to the proceeding; and

3. Must be held at the courthouse, unless otherwise directed by the court.

See 22 NYCRR § 207.28.

In an uncontested probate proceeding, if a witness is outside the jurisdiction of the court and cannot conveniently come to the court, the court may direct that the witness be examined in the Surrogate’s Court of another county, in an appropriate court of another state or county, or before a commissioner designated by the court. See SCPA § 507(2); 22 NYCRR § 207.22(a).

[6] Recording Testimony

In all cases, proof must be reduced to writing and the testimony of the witnesses recorded either by the probate clerk or, if a party other than the court is conducting the examinations, by a stenogra-pher. See SCPA § 1404(4).

[7] Determining Responsibility for Examination Costs

If examinations are conducted before objections are filed, the costs of the initial examination of the first two attesting witnesses within the state or the examination of the one witness outside the state who resides closest to the county in which the proceedings are pending are to be paid by the decedent’s estate. The same is true of the costs of the stenographer, one copy of the transcripts for the court and any guardian ad litem. All other costs, including costs of examinations conducted after objections are filed and costs of document discovery, are governed by CPLR Article 31. See SCPA § 1404(5).

115.07.

¶¶ 1404.01, 1404.11.

¶ 3101.01.

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● LexisNexis AnswerGuide New York Civil Litigation § 6.01

et seq. (discovery).

§ 3.13 Proving Lost or Destroyed Will

In order to admit a lost will to probate the proponent must prove the following:

1. The Will was not revoked; 2. The Will was duly executed; and

3. The contents of the Will by providing a copy of the executed Will, a draft of the Will, or testimony of at least two credible witnesses regarding the contents.

See SCPA § 1407.

A witness’ testimony as to the provisions of the Will must be based upon the witness’ own reading of the Will and cannot be based upon statements made by the decedent to the witness regarding the contents of the Will. A decedent’s declaration as to the contents of the Will are inadmissible in New York. See In re

Yanover, 16 Misc. 2d 128, 182 N.Y.S.2d 961 (Sur. Ct. Nassau

County 1959) (refusing to admit lost Will based on decedent’s declarations of contents).

Strategic Point: Retention of the original Will by the attorney-draftsman will usually overcome the presumption that a lost Will was revoked by the testator.

41.13.

¶¶ 1407.01 et seq.

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§ 3.14 Proving Nuncupative or Holographic Will

In addition to the usual proof required that the testator was competent to make a Will and under no restraint, the following additional proofs must be offered in order to probate a nuncupative Will or a holographic Will:

1. Proof of the eligibility of the testator to make a nuncupative or holographic Will and the non-expiration of such Will. EPTL § 3-2.2 requires that the testator be either a member of the armed forces, accompanying an armed force during a time of armed conflict or a mariner at sea. See SCPA § 1404(3).

2. If the Will is nuncupative, proof by at least two witnesses of both the execution and provisions of the Will. See SCPA § 1404(3).

3. If the Will is holographic, proof that the decedent wrote the Will with testamentary intent and proof of the testator’s handwriting. See SCPA § 1404(3).

41.13, 42.05.

¶ 1404.06.

1405:5 (affidavit as to handwriting).

● 5th Rep., Temp Comm’n on Estates, Leg. Doc. (1966) No.

19, App. L-8, pp. 371–97.

§ 3.15 Filing Objections

[1] Determining Who May File Objections

In order to have standing to file objections to the probate of a Will or of any part thereof:

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1. A party must have a pecuniary interest in the real or personal property of the decedent;

2. Such interest must be one that would be adversely affected by the admission of the Will to probate; and

3. Unless good cause is shown, such interest cannot be a financial interest solely in fiduciary commissions.

See SCPA § 1410.

Exception: Even if a legatee has no standing to object to a Will due to a lack of pecuniary interest, he or she can nevertheless object to the qualification of the nominated fiduciary. See In re Judson, N.Y.L.J., Nov. 1, 1995, p. 32 (Sur. Ct. New York County) (allowing parties to object to qualification of preliminary executor despite lack of standing to file objections to probate).

An in terrorem clause cannot deprive a person of standing to contest the probate of a Will. See In re Lippner, 104 Misc. 2d 819, 429 N.Y.S.2d 839 (Sur. Ct. Kings County 1980) (neither a “no contest” nor a “forfeiture” clause may under any circumstances deny to a distributee “standing” to contest probate of the Will under SCPA § 1410). However, if unsuccessful, the contestant may forfeit his or her interest in the estate.

[2] Considering Form and Timing of Objections

Objections to the probate of a Will must be in writing and filed on or before the return date or on a subsequent day as directed by the court.

If a request is made to examine the witnesses pursuant to SCPA § 1404, objections must be filed within 10 days after the comple-tion of such examinacomple-tion or such later date as may be agreed to by the parties or fixed by the court. See SCPA § 1410 and 22 NYCRR § 207.26.

Unless the court makes a special order, late objections may be accepted only if accompanied by a stipulation of all parties to § 3.15[2] PROBATE PROCEEDINGS

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extend the time to file objections. See 22 NYCRR § 207.36. In such a case, the court will examine the following factors:

1. The reason for the delay; 2. The extent of the delay;

3. The deliberateness of the default;

4. The prejudice that might result from the delay; and 5. The merits of the objection.

See Anolick v. Travelers Ins. County, 63 A.D.2d 665, 404 N.Y.S.2d

689 (2d Dep’t 1978) (vacating default after reviewing all relevant factors); In re Harrison, N.Y.L.J., May 20, 2002, p. 22 (Sur. Ct. Bronx County) (allowing objections to be filed).

[3] Including Proper Allegations Within Objections

Proper objections to the probate of a Will include objections regarding the genuineness, validity, and due execution of the Will. Any questions regarding the meaning of the Will or seeking a correction of the Will cannot be determined until after the Will is admitted to probate. See In re Devine, 41 Misc. 2d 211, 244 N.Y.S.2d 934 (Sur. Ct. New York County 1963) (holding that the meaning of a Will and its interpretation and correction must wait until after Will is admitted to probate). Common objections include allegations of improper execution, fraud, duress, undue influence, lack of testamentary capacity, forgery and revocation.

The following allegations are improper in a proceeding to probate a Will because they do not concern the genuineness, validity and due execution of the Will:

1. That a divorce obtained by the decedent was invalid (see

In re Dennis, 206 Misc. 593, 133 N.Y.S.2d 455 (Sur. Ct.

Suffolk County 1954));

2. That the Will does not dispose of the decedent’s property in a manner consistent with a valid and binding agreement entered into by the decedent (see In re Mirsky, 81 Misc. 2d 9, 365 N.Y.S.2d 122 (Sur. Ct. New York County 1975)); 3. That the Will would be invalid if construed in a certain way (see In re Devine, 41 Misc. 2d 211, 244 N.Y.S.2d 934 (Sur. Ct. New York County 1963)); and

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4. That legacies are prohibited by statute (see In re Felter, 32 Misc. 2d 985, 224 N.Y.S.2d 966 (Sur. Ct. Kings County 1962)).

Objections should:

1. Include a verified allegation of how the objectant’s interest is adversely affected; and

2. Describe the allegations in sufficient detail to give the court and other parties notice of the objections asserted.

See SCPA §§ 103(39) and 302(2).

Strategic Point: Objections need not specifically deny the allegations of the probate petition. Rather, the objections may affirmatively allege why probate should be denied, such as to lack of capacity, undue influence, or improper execution of the Will. See In re Dixon, 7 Misc. 2d 812, 160 N.Y.S.2d 177 (Sur. Ct. Westchester County), aff’d, 2 A.D.2d 987, 158 N.Y.S.2d 770 (2d Dep’t 1956).

● Warren’s Heaton on Surrogates’ Courts §§ 42.01–42.09. ● Cox, Arenson & Medina, New York Civil Practice: SCPA

¶¶ 1410.01 et seq.

§ 3.16 Giving Notice and Serving Citation Upon Filing of Objections

[1] Determining Who Must Receive Notice of Objections and Citation

Whenever objections are filed, the party filing objections should furnish a copy of the objections to each party who appeared in the matter.

Within 30 days after the filing of objections, the proponent of the Will must submit a citation to the court which must be served § 3.16[1] PROBATE PROCEEDINGS

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upon each party named in the Will whose interests would be affected by the outcome of the proceeding and who has not appeared in the proceeding or waived service of citation. If the proponent fails to submit the citation to the court, it may be submitted by any other interested party. See SCPA § 1411(2) and (3) and 22 NYCRR § 207.26.

Any person who has waived service of citation or has been served may appear personally on the return date or by filing a notice of appearance. Any party failing to appear will not be entitled to further notice and any determinations or settlements will be binding on all persons who have failed to appear. See SCPA § 1411(5) and (6).

[2] Including Required Contents in Citation

The citation must recite:

1. That objections have been filed;

2. That such objections may be determined at a trial, hearing or conference on a specified return date; and

3. The consequences of failing to appear.

See SCPA § 1411(1).

[3] Serving Citation

The citation must be served in accordance with the rules of SCPA §§ 307 and 308 except that service may be made by mail upon any person whether a resident or nonresident of New York. See SCPA § 1411(4).

Proof of service by affidavit must be filed with the court at least two days before the return date. See SCPA § 1411(4).

¶ 1411.01.

Ch. 3101.

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● LexisNexis AnswerGuide New York Civil Litigation §§ 6.01

et seq. (discovery), 8.01 et seq.

● 22 NYCRR §§ 207.23, 207.27, 207.28, and CPLR Article

31 (regarding pretrial procedures including pretrial confer-ences, examination of witnesses, discovery, document pro-duction, bill of particulars, interrogatories, and letters rogatory).

§ 3.17 Obtaining Decree

[1] Meeting Prerequisites for Issuance of Decree

Before a Will may be admitted to probate, the court must first be satisfied with the genuineness and validity of the Will. See SCPA § 1408(1). Even if all parties consent to probate, the court must make its own evaluation regarding the validity of the Will.

See In re Wharton, 114 Misc. 2d 1017, 453 N.Y.S.2d 308 (Sur.

Ct. Westchester County 1982) (duty of Surrogate to be satisfied that instrument offered for probate was duly executed).

The court must issue a decree admitting the Will to probate when it is satisfied that:

1. The Will is genuine;

2. The Will was validly executed pursuant to the provisions of EPTL § 3-2.1 (in the case of a holographic Will, EPTL § 3-2.2);

3. The testator had the requisite capacity to make a Will at the time of its execution; and

4. The testator was not under any undue restraint.

See SCPA § 1408(2).

Partial probate of a Will is permissible. See In re Atlas, 101 Misc. 2d 677, 421 N.Y.S.2d 815 (Sur. Ct. Nassau County 1979).

[2] Including Required Contents in Decree

In the normal case where there is no probate contest, the decree should include the following:

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1. A statement that the Will has been filed with a petition for its probate;

2. A statement confirming that jurisdiction has been obtained over all interested parties by citation, appearance, or waiver; 3. A statement that a guardian ad litem has been appointed, if appropriate, and has filed his or her report without objection;

4. A statement that the Surrogate is satisfied that the Will is genuine and was duly executed and that the testator was competent to make a Will and not under any restraint; 5. A direction for the issuance of letters testamentary to the

executors named in the Will upon their qualification and, if relevant, letters of trusteeship; and

6. A revocation of any prior letters of administration, prelimi-nary letters testamentary, or letters of administration. SCPA § 1413.

If there was a Will contest, the decree should also include recitals of the filing of objections, the trial and the verdict or decision, or, if there was a settlement, the terms of the settlement. The decree may also include provisions for the payment of costs.

The court may strike from the Will non-dispositive and libelous or objectionable language. In such a case, the Will is preserved intact and under seal and the amended text is set forth in the decree.

See In re Croker, 201 Misc. 264, 105 N.Y.S.2d 190 (Sur. Ct.

Suffolk County 1951).

42.07, 43.01, 43.02, 43.03, 43.04 (due execution of a Will, the level of capacity required to execute a Will, fraud and undue influence).

¶¶ 1402.06, 1408.01, 1408.02, 1408.03, 1408.04, 1408.05, 1413.01, 1413.02, 1422.01, 1423.01, 1424.01, 1424.02.

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1411:5–Form No. SCPA 1411:23 (various forms of decree).

● 5th Rep., Temp. Comm’n on Estates, Leg. Doc. (1966) No.

19, App. M-4, pp.546–59.

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PART E: OBTAINING LETTERS

TESTAMENTARY

§ 3.18 Checklist for Obtaining Letters Testamentary M Confirm that nominated executor is eligible to receive letters

testamentary. SCPA § 707. See § 3.19[1] below.

M File renunciation if nominated executor does not wish to

serve. SCPA § 1417. See § 3.19[3] below.

M Consider petitioning for preliminary letters if delay in

probate is expected. SCPA § 1412. See § 3.20 below. Prepare and file separate petition for preliminary letters at or after filing probate petition.

Mail notice of petition for preliminary letters to all persons with right to letters testamentary.

Mail notice of appointment of preliminary executor to all parties who have appeared.

M Obtain court approval before distributing estate assets to

beneficiaries in advance of Will being admitted to probate.

See § 3.20[5] below.

M Petition for letters of administration c.t.a. when no

nomi-nated executor is willing or able to serve. SCPA § 1418.

§ 3.19 Obtaining Letters Testamentary [1] Determining When and to Whom Letters

Testamentary May Issue

Letters may issue upon the happening of the following events: 1. Upon admission of a Will to probate; see SCPA § 1414(1); 2. Upon the rendering of a judgment in a Supreme Court proceeding to establish a Will and in accordance with such judgment; see SCPA § 1414(2);

3. If the person is entitled to letters upon a contingency, when the person has appeared and shown that the contingency has happened; see SCPA § 1414(3); or

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4. If such person is named as an executor by someone other than the testator pursuant to a power to appoint granted under the Will, when such person appears and files an acknowledged instrument designating him or her as execu-tor see SCPA § 1414(4).

Letters testamentary may issue to any person who: 1. Is entitled to receive letters under the Will;

2. Is eligible to serve as a fiduciary under the provisions of SCPA §§ 707 and 711; and

3. Qualifies pursuant to SCPA § 708.

See SCPA § 1414(1). The court does not have the authority to deny

letters to a person nominated under a Will who is otherwise eligible and who qualifies. See In re Scheu, 29 A.D.2d 626, 285 N.Y.S.2d 380 (4th Dep’t 1967).

Strategic Point: If someone other than the nominated executor petitions for probate of the Will, the person entitled to letters testamentary must appear in the proceed-ing. This may be done by filing a petition for receipt of letters or signing a waiver and consent form, and providing other papers required for qualification such as an oath and designation, bond, and waiver of commissions, if applica-ble. See SCPA § 1414(1).

¶¶ 1414.01, 1414.02, 1414.03.

● See Ch. 1 above and N.Y. Const. Art. 6, § 12(f) (concurrent

jurisdiction of Supreme Court).

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[2] Obtaining Supplemental Letters

If, at the time a Will was admitted to probate, the nominated executor was a minor or a non-domiciliary alien, and therefore ineligible to act as executor, but such person subsequently reaches the age of majority or becomes a citizen of the United States, supplemental letters may issue to him or her upon the filing of a petition reciting the change in circumstances. See SCPA § 1415. There is no remedy upon subsequent cure for persons who are ineligible to act as executor for reasons other than age or citizenship.

The nominated executor must be eligible to act as an executor under SCPA §§ 707 and 711 and must qualify pursuant to SCPA § 708.

¶¶ 1415.01, 1415.02, 1415.03.

[3] Renouncing or Failing to Qualify As Executor

A nominated executor may renounce his or her right to letters testamentary by an acknowledged instrument filed in the court having jurisdiction over the estate or by an oral renunciation made in open court and accepted by the Surrogate. See SCPA § 1417(1) and (4); Official Form P-10 (Renunciation of Nominated Executor and/or Trustee). The effectiveness of a renunciation may not be conditioned on subsequent events, such as the issuance of letters to another named fiduciary.

Where someone other than the nominated executor petitions for probate of the Will and such will is admitted to probate, but the nominated executor fails to appear or qualify, any party interested in the decedent’s estate may make an ex parte application to the court for an order directing that the nominated executor be deemed to have renounced his or her appointment as executor if the nominated executor fails to qualify:

1. Within 15 days after the Will is admitted to probate; 3–38 NEW YORK SURROGATE’S COURT

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2. Within 15 days after the filing of the instrument designating him or her as executor pursuant to a power in the Will; or 3. Within 5 days after objections to the grant of letters have

been determined in his or her favor.

See SCPA § 1416(1) and (3). Such an order must be served

personally within the state upon the nominated executor or using such alternative method of service as the court may prescribe. See SCPA § 1416(2).

A renunciation effected by either affirmative action of the nominated executor or by the nominated executor’s failure to comply with an order issued pursuant to SCPA § 1416 may be retracted by an acknowledged and filed instrument so long as letters have not been issued to any other party, subject to the discretion of the court. See SCPA §§ 1416(3) and 1417(2) and (4); see also

In re Kellogg, 214 N.Y. 460, 108 N.E. 844 (1915).

44.05.

¶¶ 1416.01, 1416.02, 1416.03, 1417.01, 1417.02, 1417.03.

1417:1 (Official Form P-10, Renunciation of Executor Named in Will and Waiver of Citation).

§ 3.20 Obtaining Preliminary Letters Testamentary [1] Determining If Preliminary Letters Testamentary May

Issue

Preliminary letters may issue, among other times, if a delay in probate is expected and there is a need to attend promptly to the decedent’s assets. A delay in probate may be caused, for example, by a Will contest or if the decedent’s distributees are unknown.

A petition for preliminary letters testamentary may be made: § 3.20[1] PROBATE PROCEEDINGS

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1. After the filing of a petition for probate and the issuance of process; or

2. In the discretion of the court, before the issuance of process in the probate proceeding if circumstances warrant.

See SCPA § 1412(1).

Strategic Point: The probate petition need not be complete if information remains unknown. The petitioner may sub-mit a petition for preliminary letters and proposed order for preliminary letters at the time a petition for probate is submitted.

Once process has issued and a preliminary executor has quali-fied, the court must issue preliminary letters. See SCPA § 1412(5). The court is given wide discretion, however, to limit the powers of the preliminary executor, to require the filing of a bond, and to revoke preliminary letters. See SCPA § 1412(3), (4) and (5). Nevertheless, in extraordinary circumstances, the court may deny a request for preliminary letters, such as where a bona fide issue of undue influence, fraud, or other wrongdoing is raised. See In

re Weiss, N.Y.L.J., Dec. 19, 1997, p. 32 (Sur. Ct. Bronx County).

Preliminary letters are not available for an executor nominated in a lost or destroyed will. See SCPA § 1412(1). Similarly, preliminary letters are not available if there is no nominated executor or where the Will is nuncupative. In such cases, an interested party may apply for letters of temporary administration pursuant to SCPA § 901.

¶¶ 1412.01, 1412.02, 1412.03.

● 2d Rep. of the EPTL-SCPA Legislative Advisory

Commit-tee, Leg. Doc. (1993), No. 2, pp. 31–32.

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● 2d Rep., Temp. Comm’n on Estates, Leg. Doc. (1963) No.

19, App. B, pp. 152–53.

[2] Determining Who May Petition for Preliminary Letters Testamentary

Only an executor named in the Will offered for probate can petition the court for preliminary letters testamentary. See SCPA § 1412(1). Any person with an equal right to letters (such as a nominated co-executor) may join in the petition or, after prelimi-nary letters have issued, may request that the letters be extended to him or her. See SCPA § 1412(2)(a).

A person nominated in a later Will may, after he has filed a petition for probate of such later Will and process has issued thereon, file a cross-request for preliminary letters testamentary or if preliminary letters have already issued, request the revocation of the prior letters and the issuance of preliminary letters to him or her instead. Priority will generally be given to the person named in the later Will though the court has the discretion to determine otherwise. See SCPA § 1412(2); see also, In re Mann, N.Y.L.J., Apr. 10, 1978, at 12 (Sur. Ct. New York County). In practice, courts are often reluctant to revoke preliminary letters in favor of an executor named in a subsequently filed later Will.

40.07, 40.08.

¶¶ 1412.03, 1412.04.

[3] Preparing Petition for Preliminary Letters

A petition for preliminary letters testamentary should be made using Official Form P-2 (Application for Preliminary Letters Testamentary) and must include the following information:

1. Name of proposed preliminary executor;

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2. Name of person or persons with right to receive letters testamentary;

3. Reason for request of preliminary letters; 4. Expected date of completion of probate; 5. Whether a probate contest is expected;

6. Description and estimated value of decedent’s probate assets and liabilities;

7. Whether the applicant is required to file a bond pursuant to the provisions of the Will; and

8. Oath and designation of an individual preliminary executor or consent and designation of a corporate preliminary executor.

Official Form P-2 (Application for Preliminary Letters Testamentary).

Administra-tion § 9.06 (Official Form P-2, ApplicaAdministra-tion for Preliminary

Letters Testamentary).

1412:1 (Official Form P-2, Application for Preliminary Letters Testamentary).

[4] Meeting Other Requirements for Obtaining Preliminary Letters

Notice of a petition for preliminary letters is required to be given, either before or after the issuance of preliminary letters, to all parties who have a right to letters testamentary, including a nominated co-executor and an executor nominated under a later Will filed with the court. See SCPA § 1412(1). Notice of a petition for preliminary letters need not be given to any other interested party. See In re Patton, 43 Misc. 2d 807, 252 N.Y.S.2d 510 (Sur. Ct. Kings County 1964).

Strategic Point: If the request for preliminary letters 3–42 NEW YORK SURROGATE’S COURT