In order to probate the will of a New York State decedent, all heirs and beneficiaries named in the will must sign the waiver of process consent to probate form, which the executor must file when petitioning for probate with the Surrogate's Court of the county in which the decedent resided. By signing the waiver, form P-4, heirs recognize the will's validity and allow probate to proceed without contest.
Among the documents the executor must bring to the Surrogate's Court to file for probate are the original last will and testament and any codicils, a certified copy of the death certificate and the probate petition form. In order to file or probate, the waiver of process consent to probate form must be signed by all heirs and beneficiaries named in the will and submitted. If any of the parties named in the will have died, the executor must provide a certified copy of the death certificates. The court then issues letters testamentary to the executor, documents necessary for estate administration.
Standing to Object
New York law limits the standing of people entitled to contest a will's validity. Only the closest relatives may file an objection with the Surrogate's Court. These relatives are called distributees. The surviving spouse and the decedent's children are the first level of distributees. If there is no surviving spouse or children, the next level is the decedent's parents. If the parents are deceased, the siblings or nieces and nephews may contest the will. Only relatives at the same level may object. For example, if the spouse and children sign the waiver of process consent to probate, a sibling cannot object to the validity.
If the decedent disinherited an interested party to the estate, such as a son or daughter, the executor should obtain a waiver of process consent to probate form from that person, as the individual has standing under New York law. If the disinherited party signs the waiver, the probate process may succeed. If he does not sign, he has the right to formally contest the will. The disinherited person has little standing if the will specifically mentions that no provision is made for him. However, if the will omits mention of them entirely, it may be a decision for the court.
Contesting the Will
If heirs or beneficiaries will not sign the waiver of process consent to probate, the executor must notify them of the scheduled time and date to appear in Surrogate's Court to voice objections. If the heirs do not appear at the hearing, the court considers their right to contest the will as waived. At that point, the court generally validates the will. However, if the heirs do appear in court and raise objections, the court decides in a separate hearing whether the will is valid, whether a previous will is valid, whether a codicil is valid or it may reject the entire will. If the will is rejected, the estate falls under New York's laws of intestate succession for heirs, as if the decedent died intestate.
- 4th Judicial District, Franklin County, New York: Surrogate's Court
- Gellert and Klein, P.C.: So, You Want to Avoid Probate
- New York State Unified Court System: Petition for Probate
- Raskin and Maskofsky: Probate FAQ
- Federal Trade Commission Consumer Information. “Debts and Deceased Relatives.” Accessed March 4, 2020.
- The Judiciary State of Hawai‘i. “Hawai'i Probate Rules.” Accessed March 4, 2020.
- Virginia Law. “Code of Virginia, § 64.2-452. How Will May Be Made Self-Proved; Affidavits of Witnesses.” Accessed March 4, 2020.
- Utah Courts. “Civil Terminology for Utah Interpreters,” Pages 20-21. Accessed March 4, 2020.
- Iowa Trust Code. “Chapter 633A,” Page 20. Accessed March 4, 2020.
- Utah Code. “Employment of Appraisers,” Page 24. Accessed March 4, 2020.
- The Superior Court of California, County of Santa Clara. “Closing and Distributing the Probate State." Accessed March 4, 2020
- Michigan Legislature. “700.3801 Notice of Creditors.” Accessed March 4, 2020
- Alaska Court System. “How Long Does a Creditor Have to Make a Claim Against the Estate?” Accessed March 4, 2020.
- Internal Revenue Service. “Filing Estate and Gift Tax Returns.” Accessed March 4, 2020.
- The Superior Court of California, County of Santa Clara. “Closing and Distributing the Probate State." Accessed March 4, 2020.
- New York State Unified Court System. “When There Is No Will.” Accessed March 4, 2020.
Jane Meggitt has been a writer for more than 20 years. In addition to reporting for a major newspaper chain, she has been published in "Horse News," "Suburban Classic," "Hoof Beats," "Equine Journal" and other publications. She has a Bachelor of Arts in English from New York University and an Associate of Arts from the American Academy of Dramatics Arts, New York City.