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Court Rules on Letters of Testamentary


This is a probate proceeding which has been pending since January 15, 1973. The decedent died and was survived by a husband who was alleged to be incapacitated and who was named as her executor and sole beneficiary in her will.

A New York Probate Lawyer said in connection with the right to letters testamentary, the court rendered a decision directing the issuance of letters testamentary to the petitioner, who was one of the two substituted co-executors, directing him to file an accounting complying with Rule of the court.

Subsequently there were numerous letters from the various parties interested in this estate but nothing was done either by the petitioner or his then attorney to comply with the decision of the court.

In a letter forwarding a stipulation of substitution of attorneys for the executor, the substituted attorney stated that he would take the necessary steps to complete the probate. A New York Will Lawyer said nothing further was done until the court made its own inquiry concerning the delay in probate.

The substituted attorney then filed an affidavit stating that the decedent’s husband had died and that the petitioner was the named executor in the husband’s will and that the attorney would represent the executor in the probate of the husband’s will. Lastly, he stated that the assets in the estate of the decedent herein consisted of a parcel of real property held in the name of the decedent and her husband as tenants by the entirety, and two bank accounts jointly held by the decedent and her husband.

The report of the guardian ad litem appointed by the court to protect the interests of the decedent’s incapacitated husband indicated that she was unable to ascertain the nature of the decedent’s assets from either the petitioner or his then attorney.

Nassau County Probate Lawyers said if the aforementioned assets are the sole assets in which the decedent had any interest, then there is no need to probate the decedent’s will since these assets pass by operation of law to the surviving spouse.

All too often petitions are filed in this court where there is no need for probate of the decedent’s will because the only assets in which the decedent had any interest passed by operation of law to a surviving joint tenant.

If the probate proceeding, which was unnecessary, had not been instituted, a great deal of expense and delay would have been avoided. As a result of the unnecessary delay in this proceeding, no estate tax proceedings have been filed, subjecting the estate to an interest penalty as well as depriving the surviving joint tenant of the use of the funds which belonged to him on the death of his wife. The petition for probate should be withdrawn.

In another probate proceeding, the action is one to impress a trust on assets received by the defendant as the principal beneficiary under a will executed by the mother of the parties, and admitted to probate. Staten Island Probate Lawyers said the action is based upon fraud and undue influence practiced on the deceased testator.

The papers reveal that after a probate proceeding, to which the complainant was a party, the Surrogate admitted to probate the will of the mother. An appeal was taken by the complainant as a contestant therein. The Appellate Division affirmed the decree.

Examination of the record on appeal reveals that the complainant as a contestant in the probate proceedings urged the same grounds in objection to the probate of the will as she alleges in this action. A reading of the Verified Bill of Particulars, dated June 15, 1956, in these probate proceedings recite almost verbatim the allegations contained in the complaint under consideration. On the trial her counsel stated the contestant was not ready to proceed. The Surrogate directed the trial to proceed, denying an application of the contestant’s attorney to withdraw. After trial, the Surrogate held that the Court finds that the will of mother was executed in accordance with the provisions of Section 21 of the Decedent Estate Law; that she was of sound mind and free from restraint at the time she executed the will. After a hearing, on a motion by the contestant to open her default, the Surrogate denied the motion.

The decree of the Surrogate is a bar to this action. That the decree was rendered on the default of the contestant does not prevent its use as a bar. The complainant here was a party to the probate proceeding, pleaded as an objection the grounds upon which this action is based, and had an opportunity to be heard. The fact that she failed to avail herself of the opportunity to offer proof to sustain her objections does not reduce or destroy the estoppel created by the judgment.

In our efforts to execute a will, we sometimes forget that honoring the deceased person is the main goal. If you want a Nassau County Will Contest Lawyer or a Nassau County Probate Attorney for your will related troubles, call Stephen Bilkis and Associates. They can also provide you a Nassau County Estate Administration Attorney or a Nassau County Estate Litigation Lawyer.

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