Consequences of Not Probating a Will in New York City

The following are the consequences of not probating a will:

• The estate will be distributed in accordance with intestate laws.
• The executor will not be appointed.
• If the will appears, there may be grounds to disqualify the executor if the executor knew about or had possession of the will and failed to offer it for probate.

The estate will be distributed in accordance with intestate laws

As a general rule, when a person dies and no will is found in his belongings, he is presumed to die without a will. As such, his estate is distributed in accordance with state laws on intestacy. In New York, the descent and distribution for intestacy is found in EPTL § 4-1.1.

This provision provides for the hierarchy of surviving relatives who will inherit from the decedent, with the presence of one class excluding all others. Under this hierarchy, the spouse and children get the intestate estate. In case there is no spouse or children, the parents. In the absence of the spouse, children, or parents, the parents’ issue by representation. And so forth. More explanations and examples of New York intestacy law can be found here: Intestacy Law in New York Explained, with Examples.

The executor will not be appointed

As a consequence of the non-probate of the will, the nominated executor will not be appointed. This is because, in the absence of the presentation of a will, the court will presume that the person died without a will. Thus, the court will appoint an administrator. In New York, the order of priority in granting letters of administration can be found in SCPA § 1001.

This provision states that the priority in granting letters of administration will be given in the following order:

• surviving spouse
• children
• grandchildren
• parents
• siblings
• any other distributees who are eligible and who qualify

More information regarding the appointment of an administrator in an intestate estate here: An Administrator of an Estate Without a Will. What is the Process.

The executor can be disqualified if they try to probate the will later

If a will is subsequently presented and it is found that the executor knew of or had possession of the will and did not offer it for probate, the beneficiaries in the will may request that the will be admitted to probate but the appointed of the nominated executor in the will be denied.

SCPA § 707 provides for the disqualification of the nominated executor. One of the grounds for disqualification is when the nominated executor does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

When a nominated executor knows of a will and refuses to offer it for probate, given that it is the executor’s duty to do so, beneficiaries may request the court to deny such executor’s appointment despite the admission of the will to probate. The beneficiaries can argue that the fiduciary’s dishonesty of omitting to offer the will for probate, despite knowledge of the existence of the will, should not be without any consequences.

Usually, however, an executor would offer the will for probate because an executor, once appointed, receives commission for administering the estate based on the principal received and paid out. It is possible that a nominated executor would not probate a will if there is no asset to administer or the asset is too small and the estate should then be administered under the procedure for small estates. These are acceptable reasons for not offering a will to probate.

However, when an executor is also a distributee or related to a distributee who stands to receive something more under intestate laws than in the will and this is the primary reason for not offering the will for probate, the executor’s prioritization of his own self-interest over the interest of the estate and its beneficiaries is sufficient reason for the nominated executor’s disqualification.

Estate matters can be complex. Procedures must be strictly followed. Otherwise, there may be legal and financial consequences. For this reason, it is important to seek the advice of a probate attorney who can assist you in handling the estate of the decedent. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].