Question: I am the Executor in my Mother’s Will. Someone told me that I need to “probate” the Will when she dies. What does that mean?
You were likely told that you need to probate your mother’s will when she dies because there are financial accounts or real estate titled in her name alone without a joint tenant, beneficiary or pay on death designation. These are known as “probate assets” and an Executor must be appointed by the Court to collect these assets, pay bills, and distribute to the balance to the beneficiaries named in the Will.
The term “probate” means proving to the Surrogate’s Court that the Will is a valid expression of your mother’s last wishes and that it was executed in accordance with the laws of the State of New York. Once the Court is satisfied with the proof provided, it will issue Letters Testamentary appointing you as the Executor of the Estate.
The process of Probating the Will involves filing a Petition by the nominated Executor. The Petition contains information about the decedent, the Will, the “probate assets”, surviving family members and beneficiaries of the Will. The process also involves obtaining signed Waivers from your mother’s surviving spouse (if any) and all surviving children she may have, or the children of any predeceased children. These parties are known as distributees and must sign Waivers or be served with a Citation before the Will is admitted to Probate. They must be served even if they are disinherited.
A Citation is a document that is served when a distributee does not sign a Waiver, is under eighteen or under a legal disability. A Citation informs the distributee that the nominated Executor is offering the Will for Probate and if they have any objections to the Probate of the Will they must appear in Court on the date stated in the Citation. If the distributee wants to contest the Will, they must appear in Court and state their reason. If the distributee does not appear in Court then the Will is admitted to Probate and an Executor is appointed. If there are distributees under age eighteen or under a legal disability, then the Court will appoint a Guardian ad litem. In that case the Will cannot be admitted to probate until the Court receives a report from the Guardian ad Litem and the report is approved by the Court. This is done to protect the interests of minor or disabled distributees.
Although this provides a brief overview of probate process, there may be other considerations. If natural distributes are disinherited in the Will, it would probably make sense to avoid probate by using a living trust.
By: Nancy Burner, Esq. and Kera Reed, Esq.