Can I Probate Without A Lawyer in New York – What Are the Considerations? I give workshops on estate planning regularly. One of the questions attendees most frequently ask is: do I need a lawyer to probate a Will in New York? Of course, it is permitted to Probate a Will without a lawyer in New York. But is it a good idea?

What is Probate?

The Court uses Probate to prove a Will.  The Petitioner, usually the Executor presents the Will to the Court. If certain conditions are met, the Court declares the document to be the actual legally enforceable Will. Only then can the terms of the Will be carried out. Once the document is declared the Will, then the Executor can pay the bills, transfer property or fund testamentary trusts. In my experience the process takes between seven months and two and one half years depending on several factors. But can you probate without a lawyer in New York?

Is My Document a Will?

But let’s start with a more basic question: what is a Will? A Will is an estate planning document. The Will instructs your Executor who should get your property after your die. The second thing a Will does is appoint someone to give the property out. In New York the person appointed to be in charge of the estate is called an “Executor”. A document must be signed using certain formalities spelled out in the law in order to be considered a Will. The Court will examine the Will to see if those requirements were carried out.

How Do I Probate a Will?

The process of probating a Will in New York is complex. Our law library has multiple-volume legal treatises on the subject of Probate. The laws that govern this process in New York are the Surrogate’s Court Procedure Act, and the Estates Powers and Trusts law. You can read these laws online. It is important to start the Probate proceeding in the appropriate County in New York. Generally the appropriate County is the County in which the person lived or owned real estate. For example the Probate Court in Staten Island is on 18 Richmond Terrace.

So Who Probates a Will in New York?

The “Petitioner” probates a Will in New York. So, who is the Petitioner? The Petitioner is the person who wants the Court to accept the document as the Will. It is typically the Executor (or Personal Representative) of the estate. That is, the person named by the deceased, in the Will to carry out the instructions in the Will. How do you know who the Executor is? You read the Will. A typical statement would be something like this: “I appoint John Jones to be the Executor of this my last Will and testament.” In this example, John Jones would probably be the Petitioner. But, can I Probate without a Lawyer in New York – does John Jones need to hire a lawyer to conduct the probate process? The short answer is “no”. However, in some circumstances it is better to hire a lawyer to probate a Will in New York.

When it is Not Advisable to Probate Without A Lawyer in New York

    •  Minors are involved.

Minors who may be necessary parties to your Probate proceedings cannot voluntarily waive their rights.

    • Time is of the essence.

Perhaps there is a tenant who is not paying their rent; or perhaps the deceased was a party to a contract that had strict deadlines. Probate is complicated. If you waste time figuring it out, you could be waiving valuable rights.

    • If there is the possibility of someone contesting the Will.

A Will contest can be avoided many times with the bargaining position that comes with knowledge. An attorney who has defended Will contests can identify the strengths and weaknesses of a case almost immediately. We are also Estate Planning Attorneys who practice defensive Will drafting. We know the elements of the causes of action in Will contests. Many people settle cases when they don’t have to. Or conversely, don’t settle when they really should.

    • If there is the possibility of the surviving spouse “electing” against the Will.

What is the right of election in New York? Did you know that absent a written waiver, a surviving spouse, or widow or widower has a right to take a share of the estate even if the Will leaves them less? The calculation of the share, and the existence of the right are strictly governed by statute and case law.

    • Large or complicated estates or estates that involves trusts, IRAs or Estate Taxes.

If the estate is more than five million four hundred and fifty thousand dollars there could be enormous tax consequences. It is possible to minimize some of the taxes due using post mortem estate planning techniques. But it is only possible if you know the rules, and take advantage of them in time. There are deadlines for filing IRS elections used in post mortem estate planning. Also, there are deadlines for filing and paying estate taxes. Failure to meet these deadlines results in very substantial taxes, interest and penalties.

Hiring a Lawyer Could Be Cheaper in the Long Run

You can probate a Will in New York without a lawyer. But it may cost more in the long run. As a general rule, sometimes there are unforgiving deadlines that can be costly. Deadlines and penalties for failure to comply are pitfalls in Probate. If you know about the pitfalls, you have a chance of avoiding them. However, if you are unaware of the pitfalls, it is unlikely you will take active steps to avoid therm. For example, the loss of a substantial cause of action, or law suit, or the loss of property rights, or the assessment of penalties and interest on estate taxes are not pitfalls you want to fall into. In these instances it is better to hire a Probate lawyer to Probate the Will, and conduct post-mortem estate planning.

Online Resources To Probate Without A Lawyer in New York

But if you feel your estate is simple enough, and there are no pitfalls, you can use the Surrogate’s Court Probate  forms online. In addition, the Clerks of the Surrogate Court offer free Probate forms. They use forms in order to ensure that the Petitioner is providing all the necessary information to the Court.
If you have questions about Probate, please contact the Probate Attorneys at Soyka-Bifulco law firm.

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