Disclaimer: This article provides general information and does not constitute legal advice. Consult a qualified attorney in New York for advice specific to your situation.
Detailed Answer: How to Probate an Old Will in New York
1. Identifying a Lost Will
Begin by confirming the will is truly lost, not merely misplaced. Search safe-deposit boxes, attorney files, and personal papers. Under EPTL § 3-2.1, any instrument signed by the decedent and witnessed by two qualified witnesses meets execution requirements for probate.
2. Filing a Probate Petition
File a petition to admit the lost will in Surrogate’s Court in the county where the decedent resided. Use SCPA § 1410 to request probate of a will not already proved. The petition should detail when, where, and by whom the will was drafted, and explain its disappearance from custody.
3. Proving the Will’s Validity
At the court hearing, present evidence under SCPA § 1402. Secure testimony from two disinterested witnesses who can confirm the decedent’s signature and the presence of formalities. If original witnesses are unavailable, proceed under SCPA § 1403 with secondary evidence such as witness affidavits or copies of the document.
4. Notifying Interested Parties
Serve notice on all heirs, devisees, and known creditors. Court rules typically require personal service or certified mail and may also mandate publication in a local newspaper. Proper notice ensures all interested parties can object or appear at the hearing.
5. Attending the Surrogate’s Court Hearing
The Surrogate’s Court judge will review testimony and documentary proof. If the court finds the will valid, it will issue an order admitting the will to probate and grant letters testamentary to the named executor. The estate administration can then proceed under court supervision.
Helpful Hints
- Begin early to locate the original will and any drafts or copies.
- Identify and contact potential witnesses quickly; their reliable testimony is crucial.
- Document the chain of custody: who found the will, when, and where.
- Prepare a clear, concise petition and gather supporting affidavits.
- Consult a probate attorney familiar with Surrogate’s Court practice.
- Keep detailed records of all service of process and court filings.