Article and audio on New York Probate Attorney

E212 How Does Probate Court Know Who to Notify?


After we published When Does the Executor Tell the Beneficiaries, many listeners and clients have asked: how does the court know who to notify?

Great question; the answer depends on who the heirs are.

If survived by many heirs

If the person who passed is survived by many heirs, the court relies on a system of checks and balances. The court sort of assumes that one of the other heirs will step up and say something is something is out of whack.

If survived by many heirs

For example, let’s say that there are actually seven nieces and nephews, but only six people have signed off on the court papers. The assumption is that one of them would mention the missing seventh person. The court will likely rely on the fact that the family members will keep each other in check.

If survived by one close heir

If survived by one close heir

Perhaps the person who passed is survived by only one heir, such as a sole spouse or an only adult child. The court needs an “affidavit of heirship” or “family tree affidavit.” This is a document that someone else must sign, swearing under oath that this is how the family tree looks. The person who signs the family tree affidavit can’t be the sole surviving spouse or child, or the sole heir’s spouse or child. So, who’s left? Usually you can use another relative (who doesn’t inherit), a longtime friend, or clergy.

If survived by distant heirs

If survived by distant heirs

“Distant heirs” can mean a couple different things. Your situation falls into this category if the family tree heirs involve first cousins or similar. It’s easy enough to prove that the person who passed had five children. But, once there are a certain number of distant heirs, the court needs proof of relationships. The court may require a genealogy report to prove complicated relationships. It is easier for the court to understand the family tree when it’s laid out on paper. In addition to the professionally verified genealogy report, the court may require a court-appointed third-party (usually the public administrator) to review and confirm the family tree. It is another method of checks and balances to make sure one side of cousins isn’t doing something to the exclusion of others.

In conclusion, you can’t go to the court to simply tell them who you are and get the estate moving. There are steps in place to keep people from doing so.

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E205 A DIY Probate Story_ 4 Years Wasted

E205 A DIY Probate Story: 4 Years Wasted


This is “Sam’s” cautionary tale of trying to DIY his dad’s estate over four years, with zero progress. I like to call this a Sisyphus story. Sisyphus was a figure from Greek mythology whose punishment for eternity was to push a heavy stone up a hill, but right when he would get to the top, the stone would come sliding back down to the bottom for him to start over again for all eternity. That is what Sam has felt like for the past four years.

Sam’s story

Sam’s story

Sam’s dad died years ago in Europe, and Sam had court hearings in European probate courts where they were declared Sam and his siblings the heirs. But in Europe the probate process is much different than New York and the U.S., as there are no actual executors; the court just declares who are the heirs.

A couple of years later, the heirs discovered a U.S. bank account that they wanted to collect. Sam spent the next four years following bank instructions into a black hole. The bank would tell him to do one thing which led to months of playing liaison with the European courts and the U.S., only to be told that it was the wrong information. Each time this happened, Sam had to start all over again.

Finally, Sam called us, and we realized that we needed to start from scratch. Even after hiring us, Sam kept talking to the bank, which created more problems, mixed signals, and cross information.

Common Probate Mistakes

Common Probate Mistakes

The first common probate mistake is to rely on the bank’s “advice.” The bank is not an advisor. If anything, their incentives are to keep the money in the accounts.

The second common probate mistake is to underestimate the complexity of the situation. Many clients believe that they have a “simple” probate matter when they call our office for help. However, often after we ask them some preliminary questions, we find that it is actually a complex estate matter. Any time the estate deals with overseas factors, the situation is certainly more complex. This should have been a red flag for Sam.

Lastly, once an attorney is hired to handle the estate, it does not help for clients to continue to work on the estate. Clients may think that they can help reduce the amount of work or hourly cost if they do some of the probate work themselves. That is not how it works, and it could end up costing the client more to have the attorney fix the DIY mistakes.

Avoid Problems in Probate

Avoid Problems in Probate

The bankers are bureaucrats, not your advisors. If you are not getting headway immediately with a bank, get a professional to help you. An experienced probate attorney can navigate the bureaucratic banking problems.

Everyone thinks their case is “simple.” What someone thinks is simple is probably just the tip of the iceberg of complex problems or twists. How do you figure out if you truly have a simple case or a more complicated situation? Many excellent probate lawyers offer free consults, so use that consultation to find out. Lawyers offer free consultations for a reason! It helps the attorney and the client to see if they are a good fit for each other.

Lastly, when you hire someone, let them do their job!

Request your free consultation

Sign-up for your free consultation using the form above, and I’ll be happy to email you a free chapter from Anthony’s best-selling bookHow Probate Works.”

E203 Why You Need an Experienced Probate Lawyer

E203 Why You Need an Experienced Probate Lawyer


Linda spent six months working with a general lawyer (meaning someone who practiced personal injury, litigation, and a dash of probate on the side). There was not much progress in those six months, so Linda became frustrated and transferred the case to us. Sadly, we had to basically start from scratch, because the general lawyer did essentially nothing.

What causes probate delays? Bad lawyers

What causes probate delays?

In Linda’s situation, six months went by and it was as if nothing happened in her case. One of the reasons for the delayed probate was because the general lawyer did not know what preliminary Letters Testamentary were. An experienced probate lawyer would have noticed right away that Linda had a complicated probate and would have immediately filed for preliminary Letters Testamentary. If this had been filed immediately, Linda could’ve started “executor-ing” months ago.

Another reason probate can be delayed is drafting the Petition wrong. In Linda’s case, the general lawyer didn’t understand which family members must be notified, and therefore hadn’t even begun collecting their contact information.

Lastly, probate can be delayed because a general lawyer might not realize that the Will isn’t properly witnessed. (As a side note, this is a good reason to find an experienced attorney to draft your Will). Getting the correct witnessing on a decedent’s Will takes a lot of time, including tracking down the witnesses and having them sign affidavits. An experienced probate lawyer would notice the incorrect witnessing and get started on the correction process immediately.

As with any practice, if a lawyer does not have much experience in a certain area of law, he or she will probably miss important details and cause delays.

When a lawyer gives bad advice

When a lawyer gives bad advice

In Linda’s situation, her deceased relative owned an income-producing property, and the general lawyer told Linda not to collect rent anymore from the tenants! This led to non-payment and problems with the tenants, which will cost the estate more money to work out. Instead of listing the house on the market during the summer, this lawyer’s bad advice means that Linda now must winterize the house. With proper legal advice, the house could have been sold and done with before the cold. In summary, bad legal advice causes more stress and aggravation for the client.

How can you avoid all this? Shop around: Compare lawyers, call their office, and visit their websites. Make sure you’re working with an experienced probate lawyer from the beginning.

Request your free consultation

Sign-up for your free consultation using the form above, and I’ll be happy to email you a free chapter from Anthony’s best-selling bookHow Probate Works.”

E198 How to Change Your Probate Lawyer


You may be surprised to learn that we receive requests quite often from people who wish to change their probate lawyer. This was the exact situation one of our clients was facing recently. “Linda” started her probate case with another lawyer but realized along the way that he was not doing a good job. So, she reached out to us to take over the case. Here’s a look at how that works.

First, from our perspective, changing firms is a double-edge sword for a lawyer. As a rule of thumb, attorneys do not particularly like to take clients who have fired their previous attorney, as it could potentially be a red flag. On the other hand, if a client has been legitimately been deprived by a past attorney, they are grateful to have help and are a pleasure to work with, as is the case with Linda.

“Linda’s” story

Linda hired a “flat-fee” probate lawyer, which she thought was a great deal. However, after 9 months, Linda realized the lawyer had not done much. She also learned he didn’t really know what he was doing. For example, he hadn’t notified any heirs, collected any of the preliminary financial documents, or even gathered the basic information, which is typically what seasoned probate attorneys do right away. That led Linda to seek out another lawyer. Not only did she want a new lawyer to help her, but she also wanted to recoup as much of her “flat-fee” as possible. After all, not much had been done in 9 months.

How To Change Lawyers In The Middle Of A Case

How To Change Lawyers In The Middle Of A Case

If the previous lawyer hasn’t done any work on the case yet, then it is pretty easy. You can request they stop working and hire someone new. However, it gets more complicated if the attorney has spent any time on the case, which can include opening the case and corresponding with the court. If that’s the case, you will want to decide wisely – even if you can’t stand working with a particular attorney, if you are close to the finish line, it may be in the best interest of the case to see it through to the end. You will have to weigh it out.

How To Transfer Case From One Lawyer To Another

If the case has progressed to the point of filing documents with the court, the attorney who filed the documents is called the “Attorney of Record.” This means they are your official lawyer in the eyes of the court. If this is the case, you simply can’t change who represents you without the approval of the court. The court requires documentation to change attorneys at this point, essentially granting permission to change attorneys. This document must be signed by all parties, including yourself, the previous attorney, and the new attorney.

This puts you in a position of needing something from the previous attorney. Therefore, it’s not advisable to air your grievances or place a nasty phone call to their office (which is actually never a good idea). Even though you may be upset with them, you need that document to be signed.

One thing to keep in mind is that an attorney may elect to not sign the document until all invoices have been settled. You may have to pay the balances in order to move on. Although you may disagree with the invoice, in reality, if they have done the work, they should be paid. You have to weigh out if paying the outstanding balances, even though they didn’t do much work in your opinion, is worth it to change attorneys.

How To Transfer Case From One Lawyer To Another

Another reason to keep the peace is for the transition to be smooth. Your new attorney will need to get the files from the previous attorney. While some records can be obtained from the court, the previous attorney may have originals that is easier to get from them then to retrieve otherwise.

Are Lawyer Retainer Fees Refundable?

The short answer is technically yes, but in reality, they are usually not. In New York and in other states, attorneys are not allowed to charge non-refundable retainers. Although found in most attorney agreements, it is not usually permissible. Unless you change your mind the day after you send the check, most lawyers would have done enough work to have earned the retainer. For example, opening the file, reviewing the documents, gathering preliminary documents, calling the court, etc., adds up, which may use most if not all of the retainer. Lawyers are definitely entitled to fees for the work they do, even if you are not satisfied with their work.

Are Lawyer Retainer Fees Refundable?

If you are considering changing attorneys, you may find that the cost of keeping your current attorney outweighs starting over with a new attorney. Alternately, depending on the particular situation, it’s worth it to start over. As with any decision, weighing your options before making the switch is important.

Request your free consultation

Sign-up for your free consultation using the form above, and I’ll be happy to email you a free chapter from Anthony’s best-selling bookHow Probate Works.”