Clients often ask me “Kamilla, how long does probate take?” This can be a hard question to answer, especially nowadays. Covid 19 has significantly backlogged the courts. Some Surrogate Court counties are more impacted than others. Even if the file is in tip top shape and fully complete, it can take months for a court clerk to process it.
Besides the backlog, which I explain further below, the following are other issues that can delay:
Is Anyone Challenging the Will?
The big question always is do you expect a will challenge? Is an heir disinherited? A will contest typically arises when a child or spouse is left out of the will. The challenging party can also be a sibling, a parent or cousin of the decedent. As long as the person is an heir of the estate a/k/a next of the kin of the deceased, then they have standing to challenge a will.
For example, if the decedent promised his sister $100,000 from his estate, but his will provides only for his children, the sister cannot contest his will. She is not an heir – only his children are. Unless the sister has another will in her possession made by the decedent that shows she’s a beneficiary, then she is out of luck.
A will contest litigation can take years. The parties can settle, take it to trial, or win or lose the case if a judge decides a major issue. Litigation includes depositions, discovery, motions, and hearings. A resolution will not come about in a matter of months. The typical time frame is 2 to 5 years.
Is Someone Challenging the Executor?
There are instances where the beneficiaries agree with what the will says, but they disagree with the nominated executor being appointed. Basically, they’re saying the decedent got the beneficiaries right in his will, but he got the executor wrong. There are a number of reasons to challenge an executor’s appointment, including dishonesty, substance abuse, felony conviction, foreign citizen, or fraud.
The rule of thumb is that the New York Surrogate’s Court does not like to disturb the decedent’s last wishes. However, there are circumstances that can justify a removal or disqualification. Maybe the decedent was mistaken or defrauded about the executor’s character, or the nominated executor turned a bad seed after the will was finalized.
If you are named as executor in the will and your character is being questioned – you have two options. Fight or step down. If a beneficiary attempts to disqualify you in court and you don’t respond to their allegations, you will be disqualified. By remaining silent, you accept the allegations made against you as true by default.
If the nominated executor pushes back and wants to keep his position, then litigating this issue can cause a significant delay to probating the will. The typical time frame to litigate this issue is 1-2 years.
Are Any Heirs Missing?
Sometimes the decedent dies with estranged children or relatives that no one knows where to find. It may seem like a minor thing, but this type of situation can delay the estate for years. Clients think that listing an heir or his address as “unknown” in court papers solves this problem.
I often get a scenario such as this: “but Kamilla, only my brothers and I are named in the will. My father had a son with someone in Russia decades ago. They were never married; we know nothing about him. So, why do we have to find him?”
Each (potential) heir of the decedent must be informed of the estate proceeding. If there’s a will, he must be given the opportunity to challenge it. NY Surrogate’s Court does not take this rule lightly. Listing an address or identity of an heir as “unknown” in court documents creates a serious dilemma.
Sometimes hiring a private investigator and asking relatives can lead to the whereabouts of the missing person. To satisfy this rule of noticing all heirs, all you need is the last known address of the person.
If the person cannot be found, the court will appoint a guardian-ad-litem to protect his interest in the estate. This appointment is problematic as all costs of the guardian’s tasks are paid by the estate, and sometimes the guardian can go as far as challenging the will if things appear amiss.
Is the File Incomplete?
Outstanding items can add months and even years to an estate’s processing time. Many times, pro se parties file documents piece by piece or submit an incomplete package. A court clerk will look at the file, see that documents are missing, and forget all about it. On the other hand, if a clerk receives a complete package – she’ll check off all the boxes and send it up to the judge for approval. After a file is marked incomplete, it can be a difficult task to get it back on the clerk’s desk. One missing document can set the probate and administration process back a long time in certain counties.
Make sure the file is complete at submission with the court. Don’t submit some documents now and make plans to send others at a later time. To speed the probate process along, hire a New York estate lawyer that knows to avoid this very costly misstep.
Surrogate’s Court Backlog
With Covid-19, some New York counties are now backlogged more than ever. The processing time for a complete file in New York’s five boroughs is a minimum of three months. And this is for a straightforward estate where the file is complete, requires no hearing, and no further review. A New York probate lawyer may be able to get the file processed sooner if certain circumstances exist. It can also be helpful to check in monthly with the department to see where the file is in the process.
How Old is the Will?
Another factor that can delay probate is an old will. Wills that were signed more than ten years ago are usually missing a very important page titled Affidavit of the Attesting Witnesses. Without this document, you have to find the witnesses to the will and ask them to sign an affidavit saying that they saw the decedent sign the instrument, declare it to be her will, among other things. Because of the long time lapse, a lot of the time one or all of the will witnesses are deceased. Deceased witnesses creates another dilemma and barrier to the will probate.
Contact a Probate Lawyer
Navigating New York Surrogate’s Court is no walk in the park. A huge part of the battle is hiring an experienced NY estate lawyer to get it done right and quickly. Contact us at 646-736-6328 to set up your initial consultation – we know what we’re doing.
