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Surrogate’s Court Procedure Act § 1401: Proceeding to Compel Production of Will

When someone passes away in New York leaving a will, before their property can be transferred to others according to the terms of the will, the will must be presented to the New York Surrogate’s Court. Presenting the will to the Surrogate’s Court is the first step in a proceeding referred to as probate. However, there are instances in which no one steps up and files the will. This may be due to the will being missing. In other cases it may be due to someone destroying the will or refusing to produce it. As a result, probate is delayed. Despite the fact that someone may wish to hide the contents of the will, destroy it, or refuse to produce it, New York law requires that anyone who is in possession of a last will and testament or has knowledge as to its whereabouts disclose such information. If you are involved in a complicated probate case, it is important that you contact an experienced New York will contest attorney to ensure that your interests are represented.

Related statutory provisions
  1. Who may propound will;  contents of petition;  direction of court: Surrogate’s Court Procedure Act, § 1402
  2. Persons to be served;  content of process: Surrogate’s Court Procedure Act, § 1403
  3. Witnesses to be examined;  proof required: Surrogate’s Court Procedure Act, § 1404
Initiating a probate proceeding

Probate is a process that occurs following someone’s death. It is initiated when the will is filed with the Surrogate’s Court in the county of the decedent’s primary residence. Typically the person named as the executor in the will is the individual who files the will, but it can be another interested party who is in possession of the will.

If the person who is believed to be in possession of the will, or who has knowledge of its whereabouts refuses to produce, section 1401 of the New York Surrogate’s Court Procedure Act, proceeding to compel production of will, allows that person to be ordered to appear in court. The Surrogate’s Court judge would then question the person purported to have knowledge about the will, and may order the individual to produce the will. In addition, if the judge determines that the person who withheld the will did not have good cause to do so, the judge may require the person who withheld the will pay the legal fees associated with the proceeding to compel production will. Among the most common reasons for intentionally failing to file or produce a will are dissatisfaction with the contents of the will and a belief that the will is not valid. However, as a New York will contest attorney will explain, if you believe that the will of a loved one is not valid, the law gives interested parties the right to file will contests to object to the will being probated.

Steps in probate

Probate is initiated by the filing of the will with the Surrogate’s Court in the county where the decedent lived at the time of his or her death. If the Surrogate’s Court judge is satisfied that the will is valid, the judge will admit it to probate. However, interested parties such as beneficiaries and heirs have the right to file an objection to the will. An objection must be based legal grounds such as fraud, lack of capacity, undue influence, or improper execution.

If the will is determined to be valid, the Surrogate’s Court judge will admit it to probate and issue Letters Testamentary to the person named in the will as the executor. The issuance of Letters gives the executor the legal right to act on behalf of the estate, wind up the decedent’s affairs, and distribute estate assets to the beneficiaries according to the terms of the will.

Winding up a decedent’s estate includes inventorying the estate assets and determining their value. As an experienced will contest attorney in New York will explain, it is essential that the executor have an accurate understanding of the value of the decedent’s estate, in order to take the next major step which is to pay the debts of the estate. Such debts may include the decedent’s unpaid bills, claims filed against the estate, state and federal taxes owed, and expenses related to administering the estate. Those who have claims against the estate have 7 months to file such claims. Failure to timely file a claim may make it much more difficult for the creditor to collect the debt owed. Once the debts are paid, the executor can them move forward with distributing estate assets to the beneficiaries named in the will.

Absence of a will

If despite a proceeding to compel production of will no will is produced, or if as a result of a will contest the will is determined to be invalid then the court will look to New York’s laws of intestate succession to determine who would be entitled to a share of the decedent’s estate. Under intestate succession, a decedent’s legal heirs are his (or her) surviving spouse and children. In the absence of a surviving spouse or children, the decedent’s heirs would be his grandchildren, parents, siblings, and other relatives based on a priority outlined in the intestate succession.

Surrogate’s Court Procedure Act § 1401. Proceeding to compel production of will

Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized under the succeeding section of this act to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises. Service of the order must be made by delivery of a certified copy thereof to the person or persons named therein either personally or in such manner as the court shall direct. The court may either in the order or otherwise in the proceeding require the production and filing in court of any will of the decedent which it finds is in the possession or under the control of the respondent. The court may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil.

Contact the Law Offices of Stephen Bilkis & Associates

Probating a will can be complicated by problems such as a missing will, objections to the validity of the will, and other disputes during the process. In order to ensure that such dispute are properly handled and to ensure that your legal rights are protected, contact a will contest attorney serving New York who has experience representing clients in estate matters before the New York Surrogate’s Court. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience helping executors, beneficiaries, and heirs settle complex estate administration matters, including matters related to a proceeding to compel production of will. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Staten Island, Brooklyn, Manhattan, Nassau County, Queens, Long Island, Suffolk County, Bronx, and Westchester County.

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