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Petitioners Request Letters of Administration


A woman died on October 26, 2000. The alleged last will and testament was executed on March 23, 1995. Under the last will and testament, the woman left her estate to her two sisters, or the survivor. She named her elder sister as executor and the younger sister as successor. The elder sister predeceased the woman without issue. As a result, the entire estate was passed to the younger sister.

In 2005, the younger sister petitioned for the appointment of a guardian of her property. The court, finding that the younger sister had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, a niece, and a friend, as guardians of the woman’s property.

A New York Probate Lawyer said in May, 2007, a judge authorized the petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. The affidavit of the friend in support states that she located the copy among the woman’s important papers after her death. While the deceased woman must have had the original will, her house had been sold and the purchaser threw away all of the deceased woman’s papers. The affirmation of the deceased woman’s friend states that after the woman’s death, her home was taken over by her former handyman who threw away all of her papers.

The instrument was prepared by an attorney, who supervised its execution and was a subscribing witness. He has filed an affirmation of due execution. The second subscribing witness cannot be located. The petitioners now move to withdraw their probate petition and ask that the Court to issue letters of administration to them. They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness. The heirs have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the woman’s Last Will & Testament dated March 23, 1995.

When there is an apparently valid testamentary instrument on file, the Court has the obligation to try to respect the testamentary wishes expressed therein, if this can be done. Nassau County Probate Lawyers said the law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property.

Normally, it is the duty of the nominated executor to take diligent and active steps to procure its probate and to protect the will from attack from any source. When the nominated trusted persons has died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument.

However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Thus, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Nor will probate be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Long Island Probate Lawyer said even an otherwise valid instrument need not be offered for probate where its proof is doubtful or would entail undue time and expense, especially where the results would be similar to intestacy.

Finally, even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration when there has been unreasonable delay in probate, where all the legatees are adults and either consent, default or appear but do not file objections. When all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission.

The sole beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties. While the failure to locate the original creates a presumption of revocation by the deceased woman, the presumption may be rebutted when there is a natural explanation for the failure to locate the original and the copy is found among the deceased person’s important papers.

Every person intends to provide something for their family and loved ones even in the time of death. If you find it difficult and troublesome to acquire what you inherited, feel free to contact the New York Estate Litigation Lawyers from Stephen Bilkis and Associates.

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