Surrogate’s Court Procedure Act § 1402: Who May Propound Will; Contents of Petition; Direction of Court

In New York, probate is the legal process that occurs when someone passes away and leaves a will. Probate is initiated when someone presents a will to the New York Surrogate’s Court, along with a petition that request that the court admit the will to probate. Typically, the person who files the will with the Surrogate’s Court is the person who the decedent named as executor in the will. However, according to section 1402 of the Surrogate’s Court Procedure Act, who may propound will; contents of petition; direction of court, any interested party may present a will to the court and initiated probate. To learn more about propounding a will, filing a petition for probate, and other steps in probate, contact an experienced New York probate attorney at the Law Offices of Stephen Bilkis & Associates.

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

Probate starts when a decedent’s will is filed with the Surrogate’s Court in the county of the decedent’s primary residence at the time of his (or her) death. While the executor is often the person who files petition for probate, under section 1402 of the Surrogate’s Court Procedure Act, who may propound will; contents of petition; direction of court, any interested party has the legal right to file the will and initiate probate. Interested parties include:

• Executor named in the will
• Beneficiaries named in the will
• Fiduciaries
• Guardian of a child or incompetent who is a beneficiary
• Conservator of a beneficiary
• Creditor
• Claimant, meaning any person who is a party to a legal action that has been brought against the decedent, or that is about to be brought against the decedent
• Public Administrator or County Treasurer, if ordered by the court

As a New York probate lawyer will explain, in order to begin probate, a probate petition must be filed with the Surrogate’s Court along with the will. According to section 1402 of the Surrogate’s Court Procedure Act, who may propound will; contents of petition; direction of court, the petition must include:

• The citizenship of the petitioner
• The citizenship of the testator
• Description of the will offered for probate
• Description of any other will of the decedent filed
• The names and post office addresses of beneficiaries and fiduciaries named in the will, or in any other will of the decedent filed

After a will along with a petition for probate is submitted to the Surrogate’s Court, the judge will review the will to determine its authenticity and validity. Interested parties such as beneficiaries name in the will or in a prior will, and legal heirs have the right to object to the will if there are grounds for believing that the will is invalid. For example, a will would be invalid if the testator did not actually sign it, and instead his or her signature was forged. The will would also be invalid if the testator executed based on undue influence by someone who wanted to receive a portion of the estate at the expense of others who would were natural beneficiaries. Improper execution of the will would also be grounds for declaring the will invalid.

If the court determines that the will is indeed valid, the judge will allow the executor to move forward with probate administration. Probate administration can be complicated, particularly if the estate is large or involves complex assets. Problems and delays may also occur if there are a large number of beneficiaries and complicated family relationships. However, with the help of an experienced probate attorney in New York, problems, disputes, and delays can be addressed and resolved, and your interests will be protected.

Once the will is approved, the steps in probate administration include inventorying, securing, and appraising estate assets, paying estate debts, and distributing assets to the beneficiaries that the decedent mentioned in the will.

1. Who may petition.  A petition for the probate of a will may be presented by
   1. any person designated in the will as legatee, devisee, fiduciary or guardian or by the guardian of an infant legatee or devisee or the committee of an incompetent legatee or devisee, or the conservator of a legatee or devisee who has been designated a conservatee pursuant to article seventy-seven of the mental hygiene law;
   2. a creditor or any person interested or any person entitled to letters of administration with the will annexed under 1418;
   3. any party to an action brought or about to be brought in which action the decedent, if living, would be a party;
   4. the Public Administrator or County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted.
2. Content of petition.  The petition for probate shall allege the citizenship of the petitioner and the testator and shall describe the will being offered for probate and any other will of the same testator on file in the court and shall set forth the names and post-office addresses so far as they can be ascertained with due diligence of all of the persons required to be cited and all of the legatees, devisees and fiduciaries named in the will or any other will so filed.
3. Direction of court.
   1. Where a petition for probate has been filed and the proceeding has not been diligently prosecuted the court may direct the Public Administrator or County Treasurer or authorize any party to take such steps as may be required to bring the proceeding to a decree.
   2. Where necessary, the court shall determine the text or tenor of the will as admitted to probate and may incorporate the will or any part thereof in the decree.

The probate attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have over two decades of experience representing executors, beneficiaries, heirs, and fiduciaries in probate administration matters, including complex litigation, will contests, matters related to estate accountings and fees. If you are concerned about a loved one’s estate and requirements of New York SPCA section 1402, who may propound will;  contents of petition;  direction of court, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Brooklyn, Manhattan, Nassau County, Queens, Long Island, Staten Island, Suffolk County, Bronx, and Westchester County.