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Surrogate’s Court Procedure Act § 1408: Probate Not Allowed Unless Court Satisfied

One of the primary reasons that a will must be probated before the testator’s estate can be settled and distributed is to ensure that the will is genuine. There are many instances in which a will that is filed with the Surrogate’s Court was not properly executed, was forged, or was the product of manipulation of the testator. The Surrogate’s Court has the right to inquire as to whether or not a will is valid, and, as described in Surrogate’s Court Procedure Act § 1408, Probate not allowed unless court satisfied, a Surrogate’s Court judge will not admit a will into probate unless he or she is satisfied that the will is valid. To learn more about the process of proving a will, contact an experienced New York probate lawyer at the Law Offices of Stephen Bilkis & Associates to discuss you concerns.

Related statutory provisions
  1. Proceeding to compel production of will: Surrogate’s Court Procedure Act, § 1401
  2. Notice of probate: Surrogate’s Court Procedure Act, § 1409
  3. Who may file objections to probate of an alleged will: Surrogate’s Court Procedure Act, § 1410
Probate not allowed unless court satisfied

Before a Surrogate’s Court judge will allow a will to be admitted to probate, the judge must be satisfied that the will is valid. To ensure that it is genuine, the judge may make inquiries into the facts related to the creation and execution of the will. The judge may also accept affidavits from witnesses. Once the judge is satisfied that the will is valid, the judge must admit it to probate.

On occasion there are instances in which it may be unclear as to whether or not the testator passed away. If a petition is presented to the court with facts that state that the testator disappeared under circumstances that indicated that the testator died, then the court can conclude that the petition is indeed dead if the sufficient facts and evidence are presented. The court can then admit the will to probate. If you have concerns related to a loved one who has disappeared under circumstances that you believe indicate that he or she has passed away, discuss your concerns with an experienced New York probate attorney who can explain the process for petition to admit that person’s will to probate.

Objecting to a will

New York law provides that objections may be filed a will. Objections cannot be filed by just anyone. Under section 1410 of the Surrogate’s Court Procedure Act only those who would be negatively affected by the probating of the will have the legal right to file objections. Such individuals are interested parties. Interested parties include:

  • Beneficiaries named in a prior will. Beneficiaries named in a prior will would have standing to file an objection to a will because if the will at issue is probated then they will lose financially as they will not benefit from the prior will
  • Next of kin. Next of kin refers to relatives of the decedent who would inherit if the decedent died intestate- without a will. Thus, if the will at issue is probated, the next of kin will not inherit unless they are also named as beneficiaries. Next of kin includes surviving spouses, children, parents, grandparents, or siblings.

In addition, anyone filing an objection must have legal grounds to do so. Common grounds for objecting to a will include lack of testamentary capacity, undue influence, fraud, and improper execution.

If you are concerned that the will of a loved one is not genuine, contact a probate attorney in New York who is experienced with probate matters including will drafting and probate litigation.

Surrogate’s Court Procedure Act § 1408. Probate not allowed unless court satisfied
  1. Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution.  The court may, however, accept an affidavit of an attesting witness in the manner and under the circumstances prescribed in this article.
  2. If it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property, unless otherwise provided by the decree and the will and decree shall be recorded.
  3. Where the petition alleges that the testator has disappeared under circumstances sufficient to justify the belief he is dead the court shall take proof of the facts.  If it appears that the testator is dead the court may make a decree determining such fact and admitting the will to probate.  The decree shall be binding in its effect upon the interests in the estate of persons under disability and of future contingent interests of persons not in being as well as the interests of adult competent persons.
Contact the Law Offices of Stephen Bilkis & Associates

For over two decades the probate attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have successfully represented beneficiaries, heirs, executors, and fiduciaries in complex estate matters with skill, tenacity, and compassion. If you have questions or concerns related to the requirements of New York SPCA section 1408, Probate not allowed unless court satisfied, or any other estate matter, contact one of our attorneys 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: Bronx, Brooklyn, Manhattan, Nassau County, Queens, Long Island, Staten Island, Suffolk County, and Westchester County.

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