March 26

How to choose a probate attorney in New York: overcoming the issue of trust

When a prospective client is hiring a probate attorney in New York the first thing I’ve noticed that is usually on my client’s minds is: do I trust this person? This is probably the most valid concern and clients have a duty to themselves to make sure one of the most important tenets to the attorney-client relationship is present.

Believe it or not, that is also on the attorney’s mind. As an attorney I get lied to every day in some sort of fashion. As a human being, I’d imagine you do as well. So, as much as you are feeling out your prospective attorney, I’d imagine they’re doing the same to you. Personally, I value good working relationships over money. When a client listens to the words I say, trusting those words and then chooses a path set before them contemplated in logic, law and the facts of the case, the attorney-client relationship is allowed to do what it’s meant to: allow me to actually help. Honesty from a client is going to enable me to be a more effective attorney who can anticipate possible speed bumps or roadblocks and help me produce better results for the client. I like getting good results. I imagine any prospective client likes them as well.

This obviously begs the question: how do I quickly come to a trusting relationship with my attorney?

I’ve found the easiest way is by word of mouth. If someone has worked with me before and refers me a friend or relative, then I know that the previous client a) thought I did a good job and b) trusts me enough to put me in their friend or relative’s hands. These are the greatest compliments I receive and the easiest relationships I usually have. Many times we can dive right into the issues because the trust boundary has already been overcome by my past relationship with the previous client. We merely just get to work. I also like getting to work.

Prospective clients that come from sources other than word of mouth encounter trust issues at a greater rate and it becomes necessary for a professional courting to take place. I’ve purposely been with my wife for 18 years because my courting days are well behind me. Yet, I understand the need for it and don’t mind playing to a point. I get it. You want to make sure your attorney is professionally competent enough to handle your case. You want to make sure your attorney is not going to just take your money with little or no result. You want to make sure the story you speak about with your attorney is going to remain in confidence. In essence, you want to make sure about the very thing I’m writing about: can I trust this person? I get it. So here is the weird, slightly illogical, but time-tested answer to that question: pay a consultation fee.

For example: I get a call about a contested probate issue with a plethora of issues and even further avenues of potential paths. The prospective client wants to explore these issues on a call or meeting, but does not want to pay a fee for the consultation. Sometimes, I offer free consults, but as of late those sometimes are getting less and less frequent. The reason is that a) I can’t give advice to non-clients as an attorney and b) I must value my time because my other clients are giving high value to it as well. The result of my “free consultations” is that they usually end up having very little substantive matter within them and people feel unsatisfied after. So, I’ve found that having a prospective client actually pay the consultation fee helps resolve the trust issue. They get to have a real conversation with me about their issues and the legal implications of those issues. They ask probing questions and I do my best to answer them or begin to find a route to those more complicated answers. They usually feel satisfied, even if the consultation was enough and they don’t need to retain me because there was a quick answer. In fact, they might even be happy because all it took was one meeting. I’m probably happy as well. I like solving problems. If it’s the start of a lengthier engagement, then I also begin to trust them and the story they are telling more because they are, using the old adage, “putting their money where their mouth is.” My takeaway here is evident: a prospective client who pays for a consult enhances one of the most substantial building blocks of the attorney-client relationship, trust, both for themselves and for the attorney.

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March 19

Can a copy of a will be probated in NY?

Yes, in New York it is possible for a copy of an original, executed will to be admitted into probate. It is even possible for a draft of a will to be admitted or even a will that is non-existent where the two witnesses clearly remember the provisions. When an original will is not accessible SCPA §1407 designates that a lost or destroyed may be admitted for probate only if:

Probating a Copy of a Will in NY

It is established that the will has not been revoked;
Execution of the will is proved in the matter required for the probate of an existed will; and
All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or be a copy or draft of the will proved to be true and complete.

The way this usually comes about is that after the deceased person passes, a family member may find or have been given a copy of the decedent’s will. The family member may take it to an attorney. The attorney may ask a few questions and then may find out there was a safe deposit box and that the decedent may have placed the original will in that box. If the family is lucky, sometimes a Petition to Open a Safe Deposit Box is a simple resolution to this problem. Now they can begin probate in NY Surrogates Court. I’ve had cases where the safe deposit box was full of money with no will, plain empty, or even worse yet, closed out a year before the decedent’s death.

So now, usually the proposed executor is holding on to this copy of the decedent’s will, feeling stressed, begging the question: now what? Well, now it’s time to get to work. To even begin an action under SCPA 1407 one will need the two witnesses who originally witnessed the will (and who distinctly and clearly remember the provisions), a copy of the will or a draft of the will. Then the proponent of the will will have to rebut the presumption that when a will is lost, the decedent destroyed the will for the purpose of revoking it. (See In re Staiger, 243 N.Y. 468 and In re Kennedy’s Will, 167 NY 163 quoted in Matter of Massimo 2015 NY Slip Op 51927(U)). At this point each case becomes highly fact specific. I hate to end the exciting ride into lost wills, but to prevent going through the incredible gamut of possibilities – this is when it’s time to call an estate attorney with experience in this situation.

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February 10

Opening a safe deposit box in NY after someone dies

Many times after a person has died, and before many probate or administration proceedings, a family or individual must inventory a decedent’s safe deposit box. It is a precursor to many proceedings in Surrogate’s Court in NY and can help expedite finding the decedent’s last will and testament and/or previously unknown assets. In New York Surrogate Courts the Application, and Certified Order will run the petitioner a filing fee of twenty six dollars ($26) total.

The Surrogate’s Court Procedure Act 2003, found here, allows for a interested party to open a safe deposit to look for an original will, burial plot deed and life insurance policies. All other items would be inventoried, but kept in the box. A court order will provide strict instructions for what to do with an original will, burial plot deed and any found life insurance policies. It will then the responsibility of the bank manager to make sure that the order is followed.

Some bank managers are unfamiliar with this process and will initially be reluctant to open the box, or will inevitably delay because of this lack of familiarity. I have found that a call from an attorney with a court order in hand helps to expedite this process tremendously. There have been noted cases where banks flat out refuse, but a court order is a court order. Remember that. Because a bank manager is nervous or ignorant to SCPA 2003, it does not restrict your right to inventory the safe deposit box.

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August 26

Do I have to call the attorney who drafted the decedent’s will in order to probate the will?

This is a great question I have happily answered in the past because many people are under the impression that they must call the attorney who drafted their deceased parent’s will in order to effectuate the probate process. The quick answer: no you do not have to call that attorney.

Getting that out of the way I thought it would be best to explore the pluses or minuses of this specific issue:

Potential negatives:

– You may not be a good fit with your deceased loved one’s attorney. Probate is a long process and as I tell my clients, we will have a real working relationship by the end of it.

– The drafting attorney may have a fee structure that you do not like. Not every attorney is open to a contingent fee arrangement and many probate attorneys mandate that their hourly fee for every phonecall, email, or correspondence be paid on a monthly basis. If you are not in a position to pay this hourly fee, this may not be a good fit as well.

Pontential positives:

– If the deceased had a very good relationship with his attorney, then the drafting attorney may have a real working knowledge of the estate assets and possibly may have a written list- something that can really help with the process. My experience is that most people use different attorneys for different things these days and that these neighborhood lawyers are disappearing more frequently. I like the idea of neighborhood lawyers myself and attempt to bring some of that charm into my practice, but the reality is that the big law culture that persists usually will eliminate this possibility.

At the end of the day, the attorney that represents you in a probate or administration proceeding is your attorney. Keep that in mind when you have to make that decision.

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