Probate Complexities: Part 1

In the last post I set forth what an ideal (easy) probate would look like, noting that varying a few factors can add serious complexity.  Here are a few variations and how they play out:

- A Will that is not attorney prepared and/or supervised.  These can be harder to probate because of certain legal presumptions.  When a Will signing is supervised by an attorney, the legal presumption is that the execution was properly done.  This can be overcome, but the burden is on the potential objectants.  It is a heavy burden. 

On the flip side, if the Will signing was not attorney supervised, the burden is on the Will proponents to show proper execution.  This is a heavy (and dangerous) burden.  It means the witnesses have to state that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).

Nobody can actually remember this stuff.  When an attorney supervises a Will, all he has to remember is what his ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.

Sometimes when people are in Court with home-made or Legal Zoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will.  They now have a burden they would not have had if they had used an attorney.

To be clear on this....the above refers to the actual Will execution.  Other grounds that someone might have to object could still be pursued.  That being said, it is really dumb to run across "due execution" issues, when they could have been easily avoided.

2.  Two witnesses and a witness Affidavit.  The law in NY is TWO witnesses.  Not one.  Not one plus someone who is also a beneficiary.  Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will.  This essentially says they were there, they signed, and everything that was supposed to be done, was done.  It saves everyone from having to locate the witnesses years later.  It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can't locate them.

This stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don't do this step.  Very bad.  Very inconsiderate to the people trying to probate the Will later.

3.  We only have a copy of the Will, not the original.  This can be a BIG problem.  You can try to probate a copy, but you have big hurdles and some nasty presumptions to overcome.  There must be testimony regarding what happened to the original.  And, if the testimony is that the Will was last in the possession of the Testator (the person making the Will) the PRESUMPTION IS HE REVOKED IT!!!   You can probate a copy if the testimony is that the lawyer had it and lost it, or the Executor had it and lost it, but the Surrogate has to be satisfied that the testimony is credible.  Probating a copy is very high pressure and stressful because many things can go wrong. 

This is why it is VERY important when counseling clients who do wills, to be careful about where the original will be. 

Last point on this topic - sometimes the safest thing to do with an original will is to file it with Surrogates Court while the person is still alive.  It costs $45 to do this, and may be worth the peace of mind of not having to worry about this issue.

Next post - More probate complexities.

Probate "Complexities"

To understand things that would add complexity to probating a Will, it is useful to look at what an ideal (and easy) probate looks like.  The complicated situations occur when one or more of these simplifying factors are missing, or when some troubling variation is in play.

In an ideal situation, we have the following:

- An attorney prepared and supervised Will.
- Two witnesses have signed the Will, and also signed a Witness Affidavit.
- We have an original Will, not a photocopy.
- There are no corrections, deletions or alterations on the Will.
- The staples have not been removed.
- We know who the distributees (people who would inherit if there were no will) are, and we know where they are.  AND, even better, they will sign a Waiver.
- We have a Will that names an Executor and that person is alive, willing to serve, and doesn't have anything about them that would prevent them from serving.
- The Will doesn't do anything that would tick off an interested party.
- The terms of the Will are clear and easy to understand.
- The person's non-probate assets (i.e. - accounts with beneficiaries, life insurance policies or jointly held real estate) are distributed consistently with the apparent intention of the Will.
- There isn't a spouse  being cut out in the Will (thus triggering a right of election).
- The death certificate lists an address in the County you think it should.
- There aren't big creditor claims, or Medicaid liens, or open taxes (or years of unfiled taxes when they should have been filed)
- We know what the assets are and where they are....and nobody has been plundering them with a power of attorney.
- The person did their Will a few years ago (as opposed to a few days, or hours, before they died)

Contrary to what many people think, most Wills fit the profile above.  Things need to be done, and they can be easily done.

Of course, there are many situations where one or more of the above complexities are in play.  They can all be addressed, but they take some know-how, some expense, and some time. 

These issues are precisely the reason why I cannot answer the question "How much do you charge to probate a Will?"  I answer that question AFTER I know about the existence, and extent, of the complexities. 

Next post - How do we deal with some specific complexities?