A rather offbeat decision from New York’s Appellate Division was recently handed down on December 1st in the Matter of the Estate of Howard Fischer,Deceased 2005 NY Slip Op 09173. Even though the decedent passed away in 1993, his executrix declined to offer his will (which was executed in 1976) for probate. The will left everything to the surviving spouse with the knowledge that she would “provide for our children”.

In January 2005, decedent’s widow filed an administration proceeding, annexing the will for information purposes . She also filed consents from her two children (the only parties with standing to object) to her appointment as administratrix.

The Surrogate’s Court denied the petition finding that a “useful purpose” would be achieved by probating the will. The petitioner appealed claiming that it was an abuse of the court’s discretion to deny the administration petition but the Appellate Division affirmed the lower court’s decision , opining that it was clearly the intent of the testator to leave his entire estate to his wife and the only way in which his wishes could be guaranteed was by probating the will. Therefore, even though it would have been possible for the estate to save “hundreds of thousands of dollars” in estate taxes by proceeding by administration rather than probate, the court ruled that the petitioner should not be allowed to engage in post-mortem estate planning and that her “delay in offering the will for probate should not be a basis for tax relief.”

Keep in mind in reviewing this decision that the testator drew his will under a tax code far removed from that which we know today. It is likely that the provisions in his will aimed at maximizing marital tax deductions would be laughable by today’s standards and accomplished little to give his spouse the same tax-savings she would have enjoyed had she been entitled to obtain letters of administration. The moral of this story is to review your will periodically –especially after Congress enacts major revisions in the tax code!