What is a Notice of Probate and How Does it Work

If you received a Notice of Probate, you may have many questions. What is a Notice of Probate? Why did I receive one? What are my options?

In New York, a notice of probate is a legal document notifying a beneficiary (legatee or devisee) who is not a next-of-kin heir, trustee, guardian, or substitute or successor executor, trustee or guardian that the will of a testator is being offered for probate and that such person receiving the notice of probate has been named in some capacity and with some interest in the will.

Why Did I Receive a Notice of Probate

If you received a notice of probate, it means you were named in the will in some way, either as a beneficiary to receive a legacy or devise, a successor executor, trustee or guardian. In New York, the Attorney General also receives a notice of probate if there is a charitable bequest.

The notice of probate will notify you of the existing probate proceeding, and will allow you to follow the proceeding, especially during distribution where you might receive a gift.

Usually, however, those who receive a notice of probate are not allowed to contest the probate proceedings because they are not distributees.

Next-of-kin heirs (also called distributees) are not given notices of probate. They are required to either execute waivers and consents that they agree to the appointment of the executor and the probate of the will. If they do not execute waivers and consents, they are issued a citation to appear before the court to show cause why the court should not issue the reliefs requested for in the probate petition. These distributees have legal standing to contest the probate of the will.

When Can a Non-Relative Contest a Will

Although the general rule is that a beneficiary who is not the next-of-kin cannot contest the will, an exception to the rule exists. If the beneficiary is a beneficiary of a prior will and stands to receive more in the prior will, then such beneficiary is entitled to contest the will even if he is not a distributee.

Options After Receiving a Notice of Probate

In New York, if you receive a notice of probate, review the will to see what your interest is. If you stand to receive a part of the estate, coordinate with the executor regarding the administration of the estate. You may not be entitled to contest the will, but if you are a beneficiary of the estate, you have the right to make sure that the executor manages the estate efficiently without waste so that the testator’s gift to you is preserved.

Thus, as beneficiary of the will, you have the right to:

• petition to compel the executor to submit an accounting
• petition the court to prohibit the executor’s sale of real property below market value
• petition to remove the executor if there is evidence of misconduct

The above list is not an exhaustive list but simply gives one an idea of the rights a beneficiary has.

A beneficiary is also entitled to receive a timely distribution of their devise or bequest. Distribution is usually not made until the seven-month period for creditors to file claims has lapsed.

If you received a notice of probate and have questions, 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].

The Notice of Probate Versus a Citation

The notice of probate is distinct from a citation issued in the same proceeding. The two documents serve different purposes:

Notice of probate. Goes to beneficiaries named in the will and to the Attorney General (for charitable bequests). It informs the recipients that the will is being offered for probate. The recipients can monitor the proceeding but generally cannot contest the will. The notice satisfies the proponent's obligation under SCPA § 1409 to identify and inform interested parties.

Citation. Goes to distributees (those who would inherit by intestacy if the will failed) who have not signed waivers. The citation requires the recipient to appear at a hearing or to file objections within a defined time. Distributees have standing to contest the will, and the citation is the formal mechanism for bringing them into the proceeding.

The two documents may go to different people. A beneficiary who is also a distributee receives both. A beneficiary who is not a distributee receives only the notice of probate. A distributee who is not a beneficiary receives only the citation.

What Information the Notice Contains

The notice of probate typically includes:

• The decedent's name and the date of death.
• The county and court where probate is being sought.
• The proposed executor's name.
• The name of the proponent's attorney and contact information.
• A statement that a will has been offered for probate.
• The recipient's interest in the will (general beneficiary, residuary, specific bequest, etc.).
• Information about the recipient's rights, if any.

The notice does not necessarily include a copy of the will. To see the will, the recipient typically needs to contact the executor's attorney or visit the court.

What to Do After Receiving the Notice

Steps a beneficiary should take after receiving a notice of probate:

1. Read the notice carefully. Understand what it says and what your interest is.
2. Get a copy of the will. The will defines your interest. Without it, you cannot evaluate what you should receive.
3. Confirm the executor's contact information. You will need to communicate with the executor or their attorney throughout the administration.
4. Provide your current contact information to the executor. Estate communications often go through mail; the executor needs your correct address.
5. Provide your tax identification information. The estate will eventually need to issue you tax documents (K-1 forms for income, 1099 forms for certain transactions).
6. Keep records of communications with the executor. Documentation matters if disputes arise later.
7. Consult an attorney if concerns arise. Particularly if you suspect mismanagement or have other concerns.

Standing to Contest: The Key Distinction

The most important practical distinction for notice recipients is whether they have standing to contest the will. Standing requires that the recipient would receive more if the will failed than they receive under the current will.

For a distributee — someone who would inherit by intestacy — standing is automatic. Their intestate share is the alternative. If the will reduces or eliminates that share, they have standing.

For a non-distributee beneficiary who received the notice of probate, standing requires showing that a prior will gave them more than the current will. If they cannot point to a prior will, they have no standing to contest, even though they may be unhappy with the current will.

This is why the prior-will question matters so much in evaluating contest options. A beneficiary who knows a prior will existed and was more favorable should pursue the contest. A beneficiary without knowledge of a prior will has limited options.

The Attorney General's Notice for Charitable Bequests

When the will includes a charitable bequest, the New York Attorney General's Charities Bureau receives the notice. The Attorney General represents the public interest in the proper administration of charitable funds. The Attorney General can:

• Review the will to ensure the charitable bequest is properly described.
• Participate in the proceeding if issues arise about the charitable purpose.
• Object if the will improperly limits the charitable bequest.
• Bring claims if the executor mishandles charitable funds.

For routine charitable bequests, the Attorney General typically does not actively participate. The notice is a formality that gives the Attorney General the opportunity to intervene if needed.

Beneficiary Rights During Administration

Even without standing to contest the will, beneficiaries have significant rights during administration:

• Right to information about the estate's progress.
• Right to demand an accounting from the executor.
• Right to object to specific items in the accounting.
• Right to petition for the executor's removal if grounds exist.
• Right to receive timely distribution of bequests.
• Right to challenge improper transactions.

These rights are independent of any contest right. A beneficiary who cannot contest the will can still hold the executor accountable for proper administration.