• Many individuals that contact our office, want an estate plan designed to avoid probate.  They have heard that about the headaches involved with probate and how it is even worse if there is no estate plan.  But, most of them don’t know the full breadth of potential pitfalls when the government and the Court gets involved with your estate plan.  Below, I will take you through the probate and administration process and point out twelve common pitfalls. Larger or more complex estates may have more pitfalls than smaller or less complex ones.  However, the basic process is the same for all estates.  

    If a person dies without a Will or Trust, any property owned in his or her name will pass through an estate and be distributed to relatives as determined by New York State law.  The recipients of the estate assets are referred to as distributees.  The person asking, or petitioning, for the power to manage and distribute the estate is usually a close family member of the decedent.  A filing fee will need to be paid based upon the size of the estate.  If the Court grants that person’s petition, they will be known as the Administrator (Administratrix is female) and receive Letters of Administration as evidence of their appointment and authority to administer the estate.    

    Pitfall #1 – If there is no Will, several family members could seek appointment as Administrator, possibly resulting in delay, confusion, legal battles and higher expenses.

    Pitfall #2 – The filing fee ranges from $280.00 – $1,250.00 for estates valued above $50,000 (applies to either probate or administration) 

    If a person dies with a Will and names an Executor (Executrix if female) who then files a petition for Probate, infighting over whom the decedent would prefer to administer the estate is avoided.  However, the existence of the Will may create other problems.

    Pitfall #3 – In order to probate a Will, the Executor must present the original signed and properly witnessed Will to the Court for validation.  In New York, if the original cannot be found, the Court will generally presume that it was revoked and treat the estate as one without a Will.   Any wishes of the decedent written in the Will will be ignored and the assets will be distributed pursuant to state law.        

    Pitfall #4 – Even if the original written Will is found and filed with the Court, lack of certain formalities will render the document invalid.  For example, to be considered valid, at least two witnesses must see the Testator sign the Will.  Those witnesses then must sign their names and include their addresses on the Will.  If any signatures are missing, the Will will likely be considered invalid.  Also, the witnesses will be required to testify or provide an affidavit confirming that the person signing the Will did so voluntarily and with a sound mind.  Although most estate planning attorneys have the witnesses sign such an affidavit at the time of Will signing, if that is not done, the witnesses will need to be found to testify in court.  If they cannot be found, the court may reject the Will.  

    Pitfall #5 – if there is evidence of tampering with the Will, it will be considered invalid.  Every estate attorney that prepares a Will will caution you not to remove the staples if you want to make a copy of the Will.  If a staple is removed, or a page is missing, or something is erased, the court will treat the Will as a nullity.  This presents an opportunity for a disinherited or slighted distributee to claim an inheritance that they were not going to get if they can get to the original Will before anyone else and destroy or tamper with it. 

    Assuming the Will is found to be valid or if there is no Will, the next determination to be made is who shall serve as Executor or Administrator of the estate.   

    Pitfall #6 – Just because someone is named as the Executor in a Will, it does not guarantee that they will be able to serve in that capacity.  An Executor or Administrator may be determined by the Court to be ineligible to serve as a fiduciary (authorized agent) of the estate.  According to state law, a person may be considered ineligible if they are: 

    – under 18 years old;

    – a non-resident of New York (with certain exceptions);

    – incompetent; 

  • – a felon;
    • – disqualified by reason of: substance abuse, dishonesty, improvidence, or want of understanding; 
    • – unable to read and write the English language; or 
    • – who is otherwise unfit for the execution of the office as determined by the Court.
  • Pitfall #7 – Even if the fiduciary is named in the Will and eligible, their appointment may still be challenged by one or more distributees or beneficiaries. Beneficiaries are those people named in the Will to receive property in contrast to those entitled under state law.

    When filing a petition for Letters Testamentary or Letters of Administration, the petitioner (the proposed Executor or Administrator) must include a death certificate and the Will, if applicable. The petition must list all distributees as well as any beneficiaries (also called devisees or legatees).

    Pitfall #8 – It is the responsibility of the petitioner to find distributees and beneficiaries and to list their names and addresses in the petition. If they cannot be found, the petitioner will have to demonstrate what steps were taken to find them. If those steps are not considered to be acceptable to the Court, the petition may be rejected or additional conditions may be imposed by the Court.

    Pitfall #9 – Once the petition is filed and found to be acceptable to the Court, the petitioner must serve a Citation, notifying interested persons of the filing and providing them an opportunity to object to the Will, the fiduciary, and the proceeding. The Citation must be served personally to individuals living in New York, and by certified mail to those living outside New York. Where someone cannot be found, publication in a newspaper may be necessary.

    Pitfall #10 – If the Will is found to be valid and the fiduciary qualified, the Court still retains power to limit the powers of fiduciary and may require that the fiduciary obtain a bond to insure the estate against any loss due their negligence.

    Pitfall #11 – The fiduciary will have the responsibility to provide an accounting of all the assets collected, debts paid and distributions.

    Pitfall #12 – Probate and Administration proceedings are public records. That means anyone will be able to find out information about your estate if they choose to do so.

  • Avoiding these pitfalls may be accomplished through the use of testamentary substitutes, including such as trusts, joint accounts, and designating beneficiaries.  A proper estate plan will utilize one or more of these techniques to avoid the time, expense and uncertainty associated with Probate and Administration.  Call Us Today to discuss how you can avoid these pitfalls and save your family from this hardship.