I have a Will, why do I need to go to court?
Although you may have a Will, the Will must first be validated through the Court system by a procedure called Probate. The purpose of this proceeding is to ensure that the Will being presented for Probate is your actual Will and was executed properly.
What this means is that any executor named in your Will, is only a nominated executor. He/she must be appointed by the court through the issuance of a Certificate of Letters Testamentary. Once your nominated Executor is appointed by the court, he/she can begin collecting your assets and administering your estate.
What is the process like and how long does it take?
The process includes filing a petition with the county Surrogate’s Court where the decedent died. Notice of the proceeding must be given to any of the decedent’s distributees (those who would be entitled to inherit the decedent’s assets, if the decedent did not have a Will, as stipulated in the New York intestacy statute), as well as to those other beneficiaries named in the Will. Provided that there are no objections and the Will was validly executed, Letters Testamentary will be issued.
The length of time of the probate proceeding varies from county to county and upon the complexity of the case. For example, if the decedent had no immediate family –then there must be a search for the decedent’s closest relatives.
What makes a Will not valid?
A Will could be deemed invalid by the Surrogate’s Court if:
- It was improperly executed.
- The Testator (person creating the will) was under duress at the time that he/she signed the will.
- The Testator was unduly influenced at the time that he/she signed the will; and
- The Testator was incapacitated at the time that he/she signed the will.