KcolorBy Kathleen G. Moriarty, Peters & Moriarty, Attorneys and Counselors of Law


Legal Matters is a regular column intended to address general legal concerns.Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.

Once you have a will prepared, it is usually protected in a locked safe at your attorney’s office. Sometimes it’s a very handsome gun safe with a 10-point buck on the door.

But then what? What happens with the will when a person dies?

In most cases, the decedent’s family or friends are aware that a will exists and know where to find it. Once the will is located, the person named as executor typically meets with the attorney who prepared the will. Together, the executor and attorney will move the estate through the probate process.

The first step is to obtain the original will and a certified copy of the death certificate. Your attorney’s office will then prepare the probate petition on behalf of the executor.

The petition is essentially a request to the court to validate the will, but the petition also contains vital information about the estate. It will list any persons who stand to benefit from the estate — both under the will, beneficiaries, and under state law, distributees, in the event that the will is invalidated. The petition also tells the court if anyone other than the executor is involved in managing the estate — most commonly, a guardian for minor children or a trustee of a testamentary trust.

In the rare event that a will is determined to be invalid, New York law contains provisions for the distribution of a person’s estate. Thus, part of the probate process is to notice these potential distributees of their right to contest the will on the basis of fraud or incompetence, for example. If a distributee chooses to contest the will, the court will schedule a date to hear objections. Once objections are heard, the court will make a decision to validate or invalidate the will.

In many cases, the distributees are the same as the beneficiaries — typically, spouses and children of the decedent. Thus, distributees are often asked to sign a “Waiver of Process: Consent to Probate.” If distributees waive their right to contest the will, the probate process is facilitated by skipping the notice requirement.

Assuming the will is validated, the court issues Letters Testamentary to the executor. This document is critical; it gives the executor legal authority to access bank accounts, sell real property, disperse personal items and money, and otherwise take the steps necessary to close the estate.

Throughout the process, it is the attorney’s role to be the liaison between the court and the executor. The executor is the liaison between the beneficiaries and the estate. An attorney’s commission for probating the estate is set by statute as a percentage of the value of the estate’s assets. In the event that the commission far exceeds the value of the work performed, the attorney often chooses to assess his time and bill hourly.

The case of an invalid will is another article entirely!