Surrogate’s Court Procedure Act § 1411: Citation Upon Filing of Objections
When a decedent passes away testate, before the decedent’s property can be transferred to the beneficiaries named in the will, the will must be filed with the New York Surrogate’s Court and the Surrogate’s Court judge must admit it to probate. However, if an interested party has grounds to believe that the will is not valid, then he (or she) has the legal right to file an objection to the will being admitted to probate. Under Surrogate’s Court Procedure Act § 1411, Citation upon filing of objections, there are specific procedures that must be followed if an objection is filed. To learn more the procedural requirements for filing and responding to objections to admitting a will to probate, contact an experienced probate attorney in New York at the Law Offices of Stephen Bilkis & Associates to discuss your concerns.Related statutory provisions
- Proceeding to compel production of will: Surrogate’s Court Procedure Act, § 1401
- Probate not allowed unless court satisfied: Surrogate’s Court Procedure Act, § 1408
- Notice of probate: Surrogate’s Court Procedure Act, § 1409
- Who may file objections to probate of an alleged will: Surrogate’s Court Procedure Act, § 1410
Under the Surrogate’s Court Procedure act, the procedures related filing objections to the probate of a will include:
- Citation must be submitted. The proponent must submit to the New York Surrogate’s Court a citation that recites that objections have been filed, that there may be a trial or hearing related to the objections, and the consequences of failing to appear at the hearing or trial.
- Timing of citation. The proponent must submit the citation must be filed within 30 days of when the objection was filed. If the proponent does not, then the objectant can submit the citation.
- Names. The citation must include the names of each person named in the will, who have not appeared at the proceeding, and whose interests would be negatively affected by outcome of the proceeding.
- Serving the citation. The citation must be served as required, and proof of service must be filed with the court. However, those who are required to be served the citation can waive service.
To ensure that all rules related to the issuance of a citation upon filing of objections are followed, contact an experienced New York probate attorney.Who may object to a will
Under New York law, only specific people have the legal standing to object to a will. To have standing you must be negatively impacted if the will is admitted to probate. Typically, those who have standing are limited to heirs and beneficiaries of a prior will.
- Heirs. A decedent’s heirs are those relatives of the decedent who would stand to inherit in the absence of a will. The rules of intestate succession state that legal heirs include the surviving spouse, children, parents, siblings, and grandparents. If the decedent is not survived by any of these relatives, the intestate succession statute state which other relatives would be entitled to inherit. Legal heirs would have standing to file an objection to a will because if the will challenge is successful, legal heirs would inherit. Thus, they have an immediate, financial interest in the outcome of the objection.
- Beneficiaries. Beneficiaries named in a prior would also have standing to file an objection as they would stand to lose financially if the current will is admitted to probate.
- Examples. Dave dies and Joe, Dave’s cousin, submits a will to probate. According to the will, Joe would receive Dave’s house. With the help of an experienced probate attorney in New York, Larry, Dave’s only child, objected to the will. Dave did not have a surviving spouse. Larry would have standing to file an objection as he is Dave’s legal heir and would inherit Dave’s entire estate in the absence of a will.
For years Cynthia told her cousin, Sara, that she would leave Sara a bequest all of her jewelry. Cynthia’s jewelry had a value of over $1 million. Sara was surprised to learn that Cynthia left Sara nothing in her will. Instead, Cynthia left everything to her husband and her two daughters. Sara wanted to file an objection to Cynthia’s will. However, Sara would not have standing as she is not Cynthia’s legal heir and there is not mention of a prior will that mentioned Sara.Surrogate’s Court Procedure Act § 1411. Citation upon filing of objections
- Whenever objections are filed to the probate of a will, the proponent shall submit to the court for issuance a citation returnable at a motion term of the court (a) reciting that objections have been filed to the will offered for probate and that such objections may be determined at a trial or at a hearing or conference on the return date or on a date to be fixed by the court, and (b) reciting the consequences of failing to appear set forth in the provisions of subdivision six of this section.
- The citation shall be submitted by the proponent to the court within thirty days after the filing of objections. If the proponent fails to submit the citation, the citation may be submitted by an objectant or any other interested person.
- The citation shall be issued to (a) each person named or referred to in the propounded instrument who has not appeared in the proceeding and whose interests would be affected by the outcome of the proceeding, and (b) such other persons as directed by the court.
- The citation shall be served in accordance with the requirements of sections 307 and 308 , except that service may be made by mail as therein provided upon any person whether or not a resident of this state. Proof of the service of the citation shall be made and filed in the court at least two days before the return date of the citation.
- Each person to whom the citation must be issued, as provided in subdivision three of this section, may waive service of the citation. Each person who has waived or has been served under this section may appear personally or by filing a notice of appearance.
- Any person who has waived or has been served under this section and who does not appear will not be entitled to further notice, and each objection filed may be determined at a trial or at a hearing or conference on the return date or on a date to be fixed by the court. If a settlement is entered into and agreed to by all parties appearing at the trial, hearing or conference, such settlement and any final determination by the court will be binding on all persons who have waived or have been served with process and who have failed to appear. Any person so failing to appear may be required to contribute to such settlement an amount which bears the same proportion to the total amount of the settlement as his or her interest in the estate bears to the aggregate of the interests in the estate of all persons required to contribute to the settlement.
When there are complications during the probate process, such as objections, whether you are an executor, beneficiary, or heir, it is important that your interests are represented by an experienced probate attorney serving clients in New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience skillfully representing clients in complex estate matters before the New York Surrogate’s Court, including matters related to the requirements of New York SPCA section 1411, Citation upon filing of objections, or any other will, estate, or trust 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: Staten Island, Nassau County, Bronx, Brooklyn, Manhattan, Queens, Long Island, Suffolk County, and Westchester County.