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].