What Happens After a Will Is Denied Probate in New York

Winning a will contest answers one question: this document will not govern the estate. It does not answer the next one, which is what will. A decree denying probate sends the estate down one of three roads, and the people who fought the contest are usually the same people who have to travel it. This page explains what the decree decides, what comes after it, who runs the estate in the meantime, and the costs, appeals and tax deadlines that keep running while everyone works it out.

What the decree denying probate decides

The Surrogate's Court may admit a will only if it is satisfied that the will is genuine, was validly executed, and that the decedent was competent and free from restraint when it was made (SCPA 1408). When objections are sustained after trial, or the proponent gives up, the court signs a decree denying probate. The decree decides that the particular instrument offered is not the decedent's will, on the ground or grounds found. It does not decide who inherits, it does not appoint anyone, and it does not decide the validity of any other document. Those are separate questions that the decree leaves open.

A will that is denied probate is treated as if it had never been made. That matters for one reason above all: it cannot revoke anything. If the rejected will contained the usual clause revoking all prior wills, that clause falls with the rest of the document, and any earlier will the decedent left behind is back in play.

The three outcomes

1. An earlier will is offered for probate

If the decedent had a prior will, whoever benefits under it will usually offer it. That is a new probate proceeding with its own petition, its own citation served on the distributees and on everyone who takes under the rejected will, and its own opportunity to object. The people who just won the contest may find themselves defending the earlier will, and the people who just lost may object to it on the same grounds they were defending against.

Whether the earlier will survived at all can be a question. If the decedent physically destroyed it after signing the later will, it is a lost will and its contents must be proved under the strict rules for lost or destroyed wills. Whether the destruction should be disregarded because the decedent destroyed it only in reliance on the later will that has now failed is the doctrine of dependent relative revocation, which we treat on a separate page. And a will that was revoked by an earlier, valid revocation is not revived merely because a later will has failed (EPTL 3-4.6); it must have been re-executed or republished by codicil.

2. Intestacy

If there is no earlier will, or the earlier will cannot be proved, the estate passes under New York's intestacy statute (EPTL 4-1.1). The shares are fixed by law:

• A surviving spouse with no children or other descendants takes everything.
• A surviving spouse with children or other descendants takes the first $50,000 plus one half of the balance; the children take the other half, with a deceased child's share passing to that child's own children by representation.
• Children with no surviving spouse take the whole estate.
• If there is no spouse and no descendant, the parents take. If no parent survives, the decedent's siblings and the children of deceased siblings take. Then grandparents and their descendants, divided between the maternal and paternal sides, and after that the statute reaches only as far as great-grandchildren of grandparents.

Intestacy is indifferent to what the decedent wanted. A stepchild, a partner who was never married to the decedent, a close friend, or a charity takes nothing. Adopted children are treated as biological children. A spouse who abandoned the decedent, or who was divorced from the decedent, is disqualified (EPTL 5-1.2). We work that arithmetic out before objections are filed, because it is the objectant's real alternative to the will.

3. A settlement

Most contests do not go to decree at all. The parties sign a stipulation that decides who receives what, and the court admits the will subject to the agreement, or denies probate and the estate is distributed under intestacy as adjusted by the agreement. The negotiated distribution controls as among the parties who signed it, and it must cover everyone with an interest, including the guardian ad litem for any minor or unknown heir.

Who administers the estate

The nominated executor's authority came from the will. When the will is rejected, the nomination is rejected with it. Someone else has to be appointed.

• If an earlier will is admitted, its named executor receives letters testamentary. If that person is dead, unwilling or unqualified, the court issues letters of administration with the will annexed (letters c.t.a.) to a beneficiary or distributee in the order the statute provides (SCPA 1418).
• If the estate is intestate, the court issues letters of administration to the distributees in the order of priority set by statute: the spouse, then the children, grandchildren, parents, siblings and so on (SCPA 1001).
• Until one of those things happens, the estate still needs a hand on the wheel. Preliminary letters issued to the nominated executor under the rejected will (SCPA 1412) do not automatically end with the decree, but the court will usually revoke them and, if there is a gap, appoint a temporary administrator (SCPA 901) to hold the assets, pay the bills and file the returns.

Acts already taken by the preliminary executor

A preliminary executor usually has been running the estate for a year or more by the time a contest is decided. Bank accounts have been consolidated, a house may have been sold with court permission, taxes have been paid, claims have been settled. Those acts were taken under valid letters and remain effective; a buyer of estate property does not lose the house because the will was later rejected. What the preliminary executor must do is account. Their commissions and their attorneys' fees are subject to the court's review, and a preliminary executor who was also the person found to have exercised undue influence can expect that review to be searching.

Specific gifts and beneficiary designations

The contest decides only what happens to the probate estate: the assets that passed through the will. Assets that pass by beneficiary designation or by operation of law are untouched. Life insurance, retirement accounts, annuities, accounts held in trust for a named person, joint accounts with a right of survivorship, real estate held as joint tenants or tenants by the entirety, and property in a living trust all go to the named beneficiary or surviving owner regardless of whether the will stands or falls. If the same undue influence that produced the will also produced a change of beneficiary on an account, that is a separate proceeding, usually a turnover or discovery proceeding under SCPA 2103, and it must be brought separately.

Within the probate estate, the specific gifts in the rejected will fall with it. A gift of the house to one child in a rejected will is simply gone; the house passes with the rest of the estate under the earlier will or under intestacy.

Partial invalidity

A will does not always fall as a whole. Where the undue influence or fraud tainted only one provision, and the rest of the will can stand on its own without doing violence to the decedent's plan, the court may deny probate as to that provision alone and admit the remainder. The tainted gift then passes as if the decedent had not made it: under the residuary clause if there is one, or by intestacy if the tainted gift was the residuary itself. The same is not true of lack of capacity or defective execution; those grounds affect the whole document, because the decedent either could make a will that day or could not.

Costs and attorneys' fees

The general rule in New York is that each party pays their own lawyer. The Surrogate's Court has discretion to award costs and allowances in a contested probate proceeding, payable from the estate or by a party (SCPA 2302). An unsuccessful proponent who offered the will in good faith, particularly a nominated executor who had a duty to offer it, is often allowed reasonable fees from the estate for the effort of trying to probate it. A proponent who was the principal beneficiary and who is found to have procured the will by undue influence is on much weaker ground and can be denied fees, or ordered to bear costs personally. Successful objectants who conferred a benefit on the estate as a whole may apply for an allowance, though the court is not obliged to grant it. Whether fees come from the estate or from individual shares is one of the largest dollar items in any settlement and should be negotiated expressly.

Appeals

The losing side may appeal a decree denying probate to the Appellate Division as of right. The notice of appeal must be filed within thirty days after service of the decree with notice of entry, and that deadline is not extended for a change of heart. Filing the notice does not by itself stop the estate from moving forward. To prevent distribution while the appeal is decided, the appellant must obtain a stay, either by court order or by posting an undertaking where the statute allows it (CPLR 5519). The practical effect of an appeal is delay, typically a year or more, during which the estate continues to accrue administration expenses, and the parties often use that period to settle. We discuss the mechanics on our page on appealing a Surrogate's Court judgment.

Tax and timing

The tax calendar does not wait for the contest. The federal estate tax return, if one is required, and the New York estate tax return are due nine months after the date of death regardless of whether anyone has been appointed or whether the will has been admitted. A six-month extension of time to file is available on request, but the tax itself is due at nine months and interest runs on any amount unpaid. The preliminary executor or temporary administrator files the return and pays the tax on the best available information, and an amended return follows when the distribution is known. A contest that lasts two or three years means two or three years of returns, accountants' fees and, for real estate, carrying costs.

A practical checklist

• Get a certified copy of the decree and the decision, and note the date of service with notice of entry, which starts the appeal clock.
• Determine whether there is an earlier will, whether the original exists, and where it is.
• Work out the distribution under the earlier will and under intestacy, and compare it to any settlement on the table.
• Decide who will petition for letters and file promptly; a vacuum invites a competing petition.
• Demand an accounting from the preliminary executor.
• Check every beneficiary designation and joint account and decide whether any needs a separate turnover proceeding.
• Calendar the estate tax return, income tax returns and any extension requests.
• Address attorneys' fees and costs in writing before the estate is distributed.

How we can help

We have handled will contests in the Surrogate's Courts of New York City, Nassau, Suffolk and Westchester since 2008, and we plan for the day after the decree before objections are filed. If a will has been denied probate, or you are deciding whether to contest one, we can tell you where the estate goes next and what you should be doing now. Our page on how to win a will contest in New York covers the contest itself, and our page on objections to probate covers the first filing. Call us at 212-233-1233 or email [email protected].