The governing principle of this blog is to be useful to the general public.  One way to accomplish this goal is to avoid the use of jargon; another way is to avoid reporting on the minutiae of the practice by rehashing the recent decisions from the courts.  (Attorneys have many outlets for such shoptalk.)

In this entry, we offer a modest proposal or two on ways of making estate planning and practice easier and less expensive (or, at the very least, giving New Yorkers more choices).

One.    Ante-Mortem Probate

“Ante-Mortem Probate.”  So much for our plan to avoid jargon.  This phrase simply means that a testator should has the right to have his or her Will certified as valid by the courts before the testator dies. Once dead, the testator is probably unable to testify as to his or her intent and capacity (short of an admissible séance). But while still alive, the testator can certainly prove his or her mental capacity, freedom from coercion, etc. In other words, one can call it pre-death probate.

At this point, many New York Trusts and Estates attorneys will have either fainted from an attack of the vapors or are frothing at the mouth in rage at the notion of pre-death probate. Having the court certify the validity of a testamentary plan will strike the local practitioner as a very radical proposal that has been studied and rejected.

Opponents will drag out some hoary old legal maxims (“the living have no heirs,” “a will is an ambulatory document”). However, one would hardly designate states like Delaware or Ohio as bastions of radicalism (or the seven other states that permit such a practice). These states have had pre-death probate for many years (in some cases for over forty years). While New York does not authorize pre-death probate, it has available many strategies that can be used to prevent an expensive and nasty probate contest. Clients should be made aware of these strategies when they inform their attorneys of their intent to disinherit an evil child or to leave all or much of their wealth to charity to the detriment of their children. Disinheritance of a distributee (“next of kin”) frequently provokes a probate contest.

The topic of ante-mortem probate has a long scholarly pedigree.  When the drafters of the Uniform Probate Code (a model proposal put together by the National Conference of Commissioners on Uniform State Laws, a committee of legal scholars and practitioners) studied the topic they unanimously agreed on the wisdom of ante-mortem probate but they could not agree on the means of implementing it. It turns out the devil, as usual, was in the details and not the concept because there are several approaches for implementing a plan of pre-death probate.  The drafters of the Uniform Probate Code could not agree on which method to adopt. We will not rehearse here the several techniques of giving life to this proposal (this is a blog entry after all, not a law review note or article).  If the reader is interested in a detailed look at the topic, then you can refer to any one of the following:

  1. An excellent overview of the topic listing the various models of implementing the use of pre-death probate is “No ‘Dead Giveaways’: Finding a Viable Model of Ante-Mortem Probate for New Jersey”

By Joseph A. Romano, Esq.

Seton Hall Law Review, Vol. 48, p. 1683. 2018

Seton Law Review

  1. Another model for implementing pre-death probate is examined here:

The Commissioners’ Model of Ante-Mortem Probate

Joe Savoie, Esq, Tekell, Book, Allen & Morris, L.L.P

The Commissioners’ Model

  1. Finally, the attorneys reading this blog entry will know the American College of Trusts and Estates Counsel (ACTEC) as the preeminent national organization of the best attorneys in the field. They recently produced a podcast discussing the experiences of attorneys in two states that have enacted enabling legislation for ante-mortem probate (Delaware and New Hampshire):

ACTEC Foundation

TWO.   Service of Process

There I go again, more jargon.  “Service of process” is merely a term that refers to the  manner by which interested parties to a court proceeding are given proper notice of the litigation so that they can appear and protect their interests.  Once the court has obtained proper jurisdiction over a party, it can proceed to act on the relief requested in the complaint (called a  petition in the Surrogate’s Court).  In most New York trial courts a defendant in a civil matter (called a respondent in Surrogate’s Court) must be served in person with the notice of the proceeding, the summons and complaint (called a citation and petition in Surrogate’s Court).  If the plaintiff is unable to serve the defendant personally, then the law permits the plaintiff to choose alternative means of making service without a court order.  The same procedure does not apply to proceedings in the Surrogate’s Court. In Surrogate’s Court, the petitioner (the plaintiff) must serve personally a New Yorker and if he or she fails to do so then application must be made to the Surrogate for an order approving an alternative means of service.

An illustration may be helpful to make sense of this.  Suppose the nominated executor of a decedent’s Will is unable to obtain the consent to probate a will from the decedent’s three adult children because the will leaves everything to a charity.  One child lives in New Jersey, another in Connecticut, while the third lives in New York.  The governing statute (Surrogate’s Court Procedure Act 307) permits the New Jersey and Connecticut siblings to be served by mail (certified mail return receipt requested, or overnight mail) but the New Yorker must be served in person unless the court orders otherwise.  In the Supreme Court, under the governing law (CPLR §308), if the New Yorker is avoiding personal service, then the plaintiff is free to use alternatives to personal service without resort to the court for an order. Not so in Surrogate’s Court. Why? I don’t know.

Therefore, when the matter appears on the court’s calendar the out-of-state siblings may appear (personally or by their attorneys) while the New Yorker does not appear.  The Surrogate will have to adjourn the matter until the New Yorker is properly served. This results in an exchange between the Surrogate and the attorney for the petitioner (the person seeking that probate of the Will) that will be incomprehensible to the laypersons from New Jersey and Connecticut. An example:

Clerk: “Number 4 on the Probate Calendar, estate of Jane Doe.”

The child from New Jersey: “Here!”

The child from Connecticut: “Here, your Honor.”

The Surrogate (to the attorney for the petitioner): “Counselor, the file is marked ‘jurisdiction incomplete’.”

Attorney: “Yes, your Honor, I request a supplemental citation be issued approving alternative service by virtue of an affirmation of due diligence and a proposed order I have with me and would like to file.”

The Surrogate: “I’ll review it, mark the calendar ‘Supp. Cite.'”

Should the disinherited children for New Jersey and Connecticut ask the attorney what just happened, they will be told that the court adjourned the whole thing and they will either have to appear again or retain counsel to appear on their behalf. In other words, a waste of time and a waste of money.