More "Little Things" That Affect Probate

The more one practices in a particular area, the more "little things" one encounters.  Some of them hardly ever happen, but surprisingly, some are quite common.  All these little things affect how the case proceeds, how much work the attorneys have to do, and how long the matter may take.  Here are just a few "little things"....

1.  Sometimes a person has a right to inherit, but before they receive their inheritance, they die.  We call these persons "post-deceased".  A post-deceased person does not lose their rights, their estate has whatever rights they would have had.  In Surrogates Court, an "estate within an Estate" is quite common.

2.  What if the post-deceased person didn't have a right to inherit, but had a right to be notified of a proceeding?  Same result as above, their estate must be notified.  Sometimes this can really delay things, as one Estate tries to get jurisdiction over another Estate.  Very frustrating.

3.  A person cannot serve as a fiduciary if they were ever convicted of a felony.  I once found out my client was a felon after I had gotten him appointed.  While I was deciding whether I was ethically obliged to report this (once I learned of it), the Court found out from someone else and revoked his appointment.  I was called in and asked about it, so I had to testify about what I knew and when.  Not pleasant, and fortunately no repercussions, but a lesson learned.  Now I always ask.  Even little old ladies, and once, an old lady admitted that she had done time in Alabama 40 years ago.  I told her I was sorry, but I could not file a probate petition for her.

4.  What if someone was a convicted felon but has a "waiver of civil disability" from a court?  I once had this situation, where my client was opposing the person being appointed.  In such a situation it is discretionary, and the Judge appointed this low life (my opinion).  Now we will end up fighting during an accounting proceeding because this person has acted quite badly.

5.  What if inheritance rights depend on establishing paternity?  I've been involved in quite a few of these.  There are statutes and developing caselaw on the the use of DNA in posthumous paternity cases.  Complicated stuff but very interesting.

The thing about probate and estate administration is, after a person dies, the money and the stuff have to go SOMEWHERE.  Figuring it all out, especially when people do not agree, takes an entire specialized court, a whole set of rules, and many lawyers who know about these things at various levels of expertise.

Most of the time things are clear, and the practice is essentially administrative. But other times, mind bending complexity comes into play.  When it does, it's nice to know a lot of little things.

10 Things Many Lawyers Don't Know About Surrogates Court in New York

Many lawyers deal with Surrogates Court only peripherally.  Questions about estates and Surrogates Court come up often enough that it is worth knowing the basics.  Here are 10 things worth knowing, even if you never set foot in Surrogates Court.

1.  The Surrogate Court Clerk's offices are broken down into departments:

- Probate (Wills and will contest issues)

- Administration (Appointment of fiduciary when there is no Will)

- Accounting (Issues concerning distribution of the Estate, a/k/a "fighting over the money")

- Guardianship (protection of minors, personally and financially)

- Miscellaneous (all kinds of proceedings: entering an apartment, getting into a safe deposit box, removing fiduciaries, and more)

2.  In probate cases there is a presumption that an attorney drawn and supervised will was validly executed.  In a contest the burden of proof is on an objectant claiming improper execution.  A non-attorney supervised will does not get this presumption, so the burden is on the proponent to prove proper execution.  Sometimes this is a BIG hurdle.

3.  To the extent any beneficiary in an Administration (intestacy) proceeding does not waive the requirement of the fiduciary posting a bond, the proposed fiduciary must post a bond in proportion to the beneficiaries interest.  VERY often proposed fiduciaries are not able to qualify for a bond.  

4.  If there is a delay in a probate or administration proceeding, and something important needs to be done (like selling a house or co-op), it often makes sense to obtain "preliminary letters".  It costs some money and requires a bond, but in the end it can save the Estate a lot of money.

5.  Contrary to what many clients think, death does not absolve an Estate from creditor's claims.  A fiduciary must address claims they know about or had reason to know about.  There are a lot of rules and caselaw on this, but the bottom line is fiduciaries do better when they address claims pro-actively.  There are also some claims (funeral, administration expenses, taxes) which take priority over general creditor claims.  

6.  When a proceeding is filed to open a safe deposit box to search for a Will, the box is opened in the presence of a bank officer.  The contents are inventoried, and if a Will is found it is delivered to the Court.  If a box is being opened after a fiduciary is appointed, the bank officer should not observing. The fiduciary has a right to open the box on their own.

7.  Nothing substantive can happen on a Surrogates Court proceeding until "jurisdiction is complete".  This occurs when all the interested parties have either signed a Waiver or been served.  In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice.  This is true even if they are not named in the Will.

8.  Whenever an interested party can't speak for themselves (some examples are minors, disabled people, missing people, or "unknowns") the Surrogate appoints a "Guardian-ad-Litem" for them.  The Court fixes a fee for the Guardian after they file a report, and they are paid out of the Estate.  I've heard cynics question this, but in my view, this procedure is absolutely essential.  I have served as a Guardian-ad-Litem many times, and take these assignments very seriously.

9.  Estates worth under $30,000 (with or without a Will) can be handled under a simplified proceeding under Article 13 of the SCPA.  These are designed to be handled without an attorney.  Most clients can handle these on their own.  Such an appointment enables a person to collect up to $30,000.  However, they would not be able to sign a deed with this type of appointment.

10.  First cousins can inherit under intestacy, but generally they can't become fiduciaries.  In "cousin cases", the Public Administrator is the fiduciary.  These Estates ultimately become "kinship cases".  This is a fascinating specialty within Surrogates Court practice.

Sometimes Surrogates Court seems like it's own little world.  It has many unique rules and procedures.  All of these are designed to ensure fairness and prevent premature or improper distributions.  Once one gets the hang of it, it starts to make sense.  Most of the time, anyway.