Your lawblogger gets calls on a regular basis from folks wondering what is happening with a parent’s estate. Most are concerned that a relative whom they do not trust is doing something improper behind their back. The safeguards against this in New York are just about foolproof.
The first thing to realize is that absolutely nothing is going to happen quickly in an estate proceeding unless there is a true emergency requiring that action be taken to protect the assets of the estate. While thoughts of the estate may surface before a body is in the grave, it takes time to commence an estate proceeding. By the time that the necessary papers (death certificate, paid funeral bill, records of assets, etc.) are gathered and brought to an attorney who must then prepare a petition for filing in Surrogate’s Court, a period of several weeks is not uncommon.
If you are a distributee the deceased (a person who legally would stand to inherit if there is no will), or if you are a legatee (a person named in the will to receive a portion of the assets of the estate) you must receive notice of the proceeding –and courts vigorously take care to make sure that all distributees are identified and notified. Usually, the attorney for the estate will send you a waiver if you are a distribute. If you sign this document, you are giving your consent either to admit your relative’s will to probate or to have the court appoint the petitioner as the estate’s administrator. If you fail or refuse to execute the waiver, you must be served with a copy of the petition (and will if there is one) citation which will give you notice of the time and place that the petition will be returnable in court. If you live in New York, the citation must be personally served upon you with ten days notice of the appearance. Out of state residents must have at least twenty days notice and the papers are served by mail.
If you are served with a citation, and you do not consent to the relief requested, you must either hire a lawyer to represent you prior to that date –or you may appear in court yourself. Surrogates are usually extremely respectful of those who chose to do so. A conference with a court attorney is normally held on the return date and your next options will be explained and you will be given a chance to obtain counsel.
Keep in mind that the New York Surrogate’s Court is a court of "public record" . Although court records are not yet on line as they are with many other New York courts, everything filed there is accessible for the asking and copies can easily be made. There are no secrets. The citation you received will have the court’s file number on it so you can then apply to the clerk for a copy of all papers filed to that date in order to show them to a lawyer. Most clerks are quite helpful and you will be able to obtain the record for a reasonable copying charge.
If, after a reasonable period of time, you are a distributee who has not heard anything about the estate and court records indicate that there has not been a filing, you can commence a proceeding compel the production of a will if you suspect one exists — or you can petition the court to be made the administrator yourself. In any event, the tools are there so that you can learn all you need to know about the estate and what is being done with it.
Your bossy brother or sister can only keep estate secrets from you for so long.