Does a will have to be probated in an estate in New York? If you are named as the executor of a New York will, you are obligated to the beneficiaries of the estate as well as to the creditors of the estate. It is your obligation to marshal the assets of the estate, pay the creditors of the decedent and distribute what is left to the decedent’s beneficiaries – his legatees in the will. If you do not probate the will, you can be personally liable to the beneficiaries of the estate as well as to the creditors. Even though you have to probate a Will in New York, you can possibly escape your responsibility to do so by having the beneficiaries and creditors sign a waiver and consent, allowing you to not have to probate the will. The waiver and consent will have to be prepared by a competent New York estate lawyer.
If the estate does not have any assets, then you can have the beneficiaries and creditors sign waivers and not probate the estate. Some executors use not filing probate in New York as a creditor avoidance strategy. This usually does not work, as creditors have rights as interested parties to themselves become an administrator of an estate, bypassing the executor.
Some executors try to avoid filing probate in New York in order to take estate assets for themselves, at the expense of the rightful beneficiaries of the estates. Some executors also delay filing probate in order to give themselves time to hide assets and convert the assets for themselves. In a situation like that, beneficiaries can hire a New York estate lawyer and bring a proceeding to compel the production of a will, and then compel the executor to act or to file a proceeding to prevent the executor from probating the will based on dishonesty.
Does a will have to be probated in an estate in New York? Usually yes. If you are an executor nominated by a will who is trying to figure out if you have to probate a will in New York, you should speak to a New York estate lawyer.
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