Once every other week I receive a phone call from a concerned party about receiving a Notice of Probate in the mail. We all know the real question that sparks this phonecall, but I’ve broken it down into five parts for added suspense.
I. What is a Notice of Probate?
Notice of Probate is explained in Surrogate’s Court Procedure Act (SCPA) § 1409. (1) Essentially it is a statutory formality that puts certain classes of people on notice that the decedent has died and that your name is listed somewhere in the will.
So, the question you really called for? Yes. You are named in the will if you receive a notice of probate. Does that mean what you want it to mean? Eh, please read “named” as literally as possible.
II. What do the terms that appear on the notice of probate actually mean? Legatee, devisee, trustee, guardian, executor, testator and successor terms defined. (2)
For the truly inquisitive I’ve placed some working definition of these terms in the footnotes. Most of them are archaic words that the law has never been able to let go of, and probably never will. I like to sum it up as simply as possible: legatees and devisees get stuff and trustees/guardians/executors do stuff. Don’t worry, the law doesn’t expect the doers to work for free though. They are eligible for compensation also. See SCPA §§ 2307, 2308, 2309.
Please note that on the Notice of Probate it will state what title you have, so you can begin to formulate a hypothesis for the most important question.
III. Am I going to receive money?
And here is the let down: it depends.
First off, is the estate solvent? Are there debts and liabilities that essentially negate the estate? If the debts plus the costs of administration are greater than the estate’s assets then no, you are not going to receive any money.
Secondly, what are you named in the will? There is no requirement that the will be sent along with a Notice of Probate, therefore you will probably be in the dark as to what the will states. It is impossible to know if you are receiving money without a copy of the will. I can play the “if this then that” game with you for 15 minutes, but we still won’t know for sure . You could be named solely as a successor executor. If that is the case you are probably not going to see any money. This leads up to our next question.
IV. Can I see a copy of the will?
Yes. A will is a public document that is accessible and it is possible to obtain a copy.
V. What do I do next?
Again this is another one of those questions where it just plainly depends. For example, if you are a specific legatee, you may just have to wait for Letters Testamentary to be issued to the executor and your bequest to be distributed. Feel free to contact me with any other questions.
Anthony Nigro is a Surrogate’s Court practitioner that primarily works out of the following counties: Westchester, Bronx, New York, Kings, Queens, Rockland, Orange, and Dutchess. Appointments can be set up by telephone, email or through his “Contact” page.
(1) “Before letters are issued there shall be filed in the court a notice…that the will has been offered for probate or probated, as the case may be. The notice…shall state whether such person is named or referred in the will as legatee, devisee, trustee, guardian or substitute or successor executor, trustee or guardian…”
(2) legatee: any person designated to receive a transfer by will of personal property (SCPA § 103.33).
devisee: any person to whom real property is transferred by will. (SCPA § 103.13).
trustee: the person appointed, or required by law, to execute a trust (Blacks Law Dictionary).
guardian: A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs. (Blacks Law Dictionary).
testator: One who makes or has made a testament or will; one who dies leaving a will. (Blacks Law Dictionary).
executor: A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease (Blacks Law Dictionary).
successors: are those named in a will that will take the place of the initial parties named due to incapacity or death.
