Estate and Elder Law

Pesky Probate Problems in New York

In this Analysis, Andrew L. Martin, Chief Court Attorney of the Nassau County Surrogate's Court, guides you through some of the more common problems an attorney will encounter in New York Surrogate's Court practice to make your next visit to the Probate Clerk's office smoother. He writes:


     Seasoned trusts and estates lawyers, as well as their less experienced associates and colleagues (shall we call them unseasoned?), will, at one time or another, find themselves in somewhat unfamiliar territory when the less-than-routine probate proceeding walks through the office door. There are several approaches to take in such cases, and we "on the inside" are used to seeing them all. One such approach is that taken by the attorney with the inquiring mind who determines to do his or her own research and who achieves that sense of personal and professional satisfaction that comes from solving a problem on one's own and moving to the next level. Then there is the humble approach taken by the attorney whose research skills may be less than exemplary or who simply can't or won't take the time to find the answer unassisted. This attorney appears before the clerk, hat in hand, and confesses, "I need help." This approach is appreciated by most clerks, who are only too happy to help the hapless attorney who's in over his head. Then there's the lawyer who all the clerks love to hate, the one who doesn't really know what he's doing but can't admit it. This lawyer may appear before the clerk with an arrogant, condescending attitude or he may have his secretary call the clerk with questions while he hovers behind her or listens in on the other line. Whichever of these attorneys most closely resembles you, I hope that this article provides some help for your next problem probate, for the benefit of yourself, your client, and your faithful probate clerk.

The Will Without a Self-Proving Affidavit

     The current practice among nearly all practitioners is to have the attesting witnesses to a will execute the affidavit required by SCPA 1406 at the time of the will's execution; in fact I can't imagine a sound reason why you wouldn't follow that practice unless circumstances made it impossible. It permits the will's admission to probate even years after the will's execution without having to try to find the attesting witnesses to have them execute the affidavits after death; it also obviates the need to show the original will to the witnesses or to obtain a court-certified copy. For some reason, not all attorneys follow this practice-or, you may find yourself with an older will before the use of the self-proving affidavit became widespread. Whatever the reason, when you are presented with a will to be admitted to probate, and the attesting witnesses did not sign affidavits at the time the will was executed, the petitioner's attorney will have to prepare affidavits to be executed by the attesting witnesses before the will can be admitted to probate. In most cases, this will simply be an annoyance that could and should have been avoided. In some cases, however, it becomes more than that. Where the witness still will not provide the affidavit despite reasonable efforts, a little cajoling, and maybe even payment of a nominal fee to compensate the witness for having to go execute the affidavit before a notary, the petitioner's attorney will have to subpoena the witness to appear and give testimony. Granted, that is an extreme case, but it is a possible outcome.

Dispensing with Testimony of Witness(es)

     A somewhat more common problem arises where either there is no self-proving affidavit, or one of the parties to the probate proceeding refuses to accept the affidavit and wants to examine the witness, as is their right, but the witness is either deceased, incapacitated, or cannot be found within the state to be deposed. In that case, SCPA 1405 permits the court to dispense with the witness's testimony and admit the will to probate upon the testimony (even if by way of affidavit) of the other witness. Before the court will grant the application to dispense with the testimony of a missing witness, it must be shown that due diligence was exercised in the effort to locate the witness. An affidavit that the petitioner does not know the whereabouts of the witness will be insufficient without showing what efforts were made to ascertain the whereabouts of the missing witness.

(footnotes omitted)

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