Mar 11, 2022 Who Does a Probate Lawyer Represent?
An experienced New York probate lawyer has a specialized practice focusing on elder law, drafting wills and various forms of trusts, estate planning, tax minimization, and all legal issues relating to the process of administering a deceased person’s estate. When a person dies, they may have written a will to inform survivors how they wish their property and other valuable assets distributed. Other people who die without a will also need someone to oversee the orderly settlement of their financial affairs and to distribute any remaining assets they owned at the time of their death.
At Ely J. Rosenzveig & Associates, our attorneys have extensive experience representing clients who become involved in the probate process. In some cases, we have acted as legal counsel to the personal representative appointed by the court to execute a decedent’s will. In other cases, we’ve represented a beneficiary who wanted their interests protected, or a beneficiary who challenged the authenticity or validity of a decedent’s will.
The death of a loved one often triggers a range of strong emotions among their survivors. Unfortunately, these periods can also expose long-simmering resentments or mistrust in some families. The question of how their deceased loved one’s assets will be distributed often becomes the source of great controversy.
Presenting a Will to the Surrogate Court
If a person dies with a will, the person who is named in the will as the executor usually presents the will to the Surrogate Court to be recognized as the genuine, valid last will and testament of the testator (the person who signed the will). There is a Surrogate’s Court in each of New York State’s 62 counties.
Then, the beneficiaries named in the will and other parties who could have benefited if named, or who would benefit if there were no will at all, each get notified of the Surrogate Court proceedings. These are what New York law considers to be “interested parties” who may contest the validity and enforceability of the will.
If one of the interested parties wishes to hallenge some part of the will, then experienced probate lawyers are likely to be needed by both the person seeking to be appointed executor as well as by the party preparing to object to the will. Any person who is a party to the issues being disputed in the Surrogate’s Court should contact an experienced New York probate lawyer without delay.
When a person with property or assets dies intestate (without a will), New York law gives the surviving spouse a priority right to file for administration of the estate. If there is no spouse, then surviving children have an equal right to do so. Here too, even without a will, controversies often arise between family members requiring the services of probate lawyers to protect their client’s interests.
How a Probate Lawyer Represents the Estate’s Executor or Administrator
When an estate involves substantial amounts of valuable assets, an estate executor or administrator needs the services of a specialist probate lawyer from the very beginning of the process.
Probate lawyers provide an extraordinarily wide range of services when representing the estate’s personal representative. Not only does the probate lawyer counsel the person appointed by the Surrogate Court, the lawyer often performs all the essential functions on the personal representative’s behalf as they cooperatively fulfill the duties required by law.
As the probate lawyer representing an estate executor or administrator, the lawyer performs tasks including, but not limited to, the following:
- identify and gather all the decedent’s assets
- receive and assess any claims of creditors of the decedent,
- quantify all estate assets and liabilities
- file reports of estate’s financial status
- notify all beneficiaries and interested parties required by law
- appear in court to protect the estate’s assets from unjust or excessive claims from strangers, creditors, beneficiaries, or other interested parties,
- assert and press any claims the estate has against others,
- prepare and file all probate related forms, reports, and documents in Surrogate Court,
- ensure the accurate preparation and filing of all tax returns with any payments due,
- distribute assets in accordance with the terms of the will
- counsel the executor or administrator to inform them of their duties and protect them from avoidable liability.
Ely J. Rosenzveig & Associates performs all of these services and any others required by the circumstances of your case. Our years of experience in the Surrogate Courts and at all levels of New York’s judicial system, our interactions with state agencies, tax officials, and with other authorities enables us to address any challenge in our clients’ best interests.
If you need an exceptional New York probate lawyer, or you want to plan your estate to avoid the probate process, Ely J. Rosenzveig & Associates is here to serve you. Our help is your solution.
How a Probate Lawyer Represents a Beneficiary or Interested Party
If a person is named as one of the beneficiaries in a will, they may be disappointed with their bequest, resent a sibling another relative, or other individuals who received a larger share of estate assets, or they may believe a different will is the true last will and testament of the testator. Another person, perhaps another of the decedent’s children, can be angry that they were excluded from the will, and they too want to contest the validity of the will presented to the Surrogate Court.
Each of these situations is quite common in a probate lawyer’s practice. What can they do for unhappy or would-be beneficiaries? The probate lawyer’s legal expertise in estates and trusts enables them to counsel their client about available options:
File for investigative “discovery” under Surrogate Court Procedure Act (SCPA) §1404
allows the client to depose the following people before deciding whether to launch a full-blown, formal objection to the will:
- the person who prepared the will,
- each of the two witnesses who attested to the will’s proper execution,
- the named executor of the will when the will includes a clause providing that
anyone who contests the will forfeits their claim to any estate assets,
- others who have information relevant to the client’s decision whether to file a formal objection to the will.
Use evidence discovered to contest the will on one or more of the following grounds:
- the will was not signed in the manner required by NY law
- the testator was not mentally competent to sign a will,
- another person signed the will for the testator without being designated,
- one or both of the witnesses were not present when the will was signed,
- the will contains language above the signature that was not present when it was signed by the testator,
- the witnesses did not attest to the will within the statutory time,
- the will was signed as a result of undue influence or duress.
- the testator signed another will after the one being proposed.
By investigating the circumstances under which the will was prepared, presented, signed, and witnessed, irregularities become known to the probate lawyer’s client before they commit to the financial and emotional investment necessary to launch and win a will contest. In New York, the §1404 early Discovery process is paid for by the estate. Your probate lawyer’s guidance will counsel you about whether to proceed beyond that initial stage or whether the evidence may not support your position.