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Oswego County Surrogate's Court


PROBATE - Decedent Left a Will (and estate assets of more than $30,000.00)

When a New York domiciliary dies (decedent) having a Last Will and Testament (testate), Probate is the process in which: (1) a Will is "proved " to the satisfaction of the Court to be the valid Last Will and Testament of the decedent, (2) the person named in the Will as Executor (fiduciary) is appointed to carry out the wishes of the decedent, and (3) jurisdiction is obtained over all interested parties who are given an opportunity to oppose the Will prior to its admission to probate. The proceeding is commenced by the filing of a petition and supporting documents with the court. FORMS are available at the court or can be downloaded from this web site. If you have any questions, please call the Surrogate's Court in whatever County you will be filing. [Note: if the decedent died without a will, then the proceeding is an Administration.]

DO NOT REMOVE THE STAPLES FROM THE WILL WHEN MAKING COPIES BEFORE FILING WITH THE COURT.
The removal of staples may provide grounds for objection to probate. If the staples have been removed and the document re-stapled, you must provide the Court with a notarized affidavit stating why they were removed (i.e. for making copies), where the document has been kept since it was executed, and that you believe that no substitutions/changes have been made since its execution.

The following information is for use with the uniform court forms.

I. Probate Petition- A decedent left a Will

A. Caption
Use the decedent's name as it appears in the signature on the will followed by a/k/a's when needed.

B. Petitioner Information
Any competent adult or corporation interested in the estate may submit a petition for probate. This can be done even though the petitioner does not wish to be appointed the executor of the estate. If the proposed Executor is an attorney compliance with SCPA 2307a must be attached.

C. Decedent Information
The caption and ¶ 2 must be consistent. Enter decedent's domiciliary address. If the address on the death certificate is different from the decedent's domiciliary address supply an affidavit explaining the inconsistency.
A death certificate must be filed with the petition. The date of death should be consistent with the death certificate.

D. Will Information
Include date of will and all codicils. Be sure to include the self-proving affidavit or witness depositions. If needed a certified copy of the Will can be obtained from the court to send to the witnesses.

E. Decedent's Distributees
Distributees may have a statutory right to object to the probate of the will and therefore must be classified. A distributee is any person entitled to take or share in property of a decedent under the statutes governing descent and distribution. See EPTL § 4-1.1. Distributees are not necessarily named in the will. See EPTL § 4-1.2 Also see DRL §115 regarding adopted children.

1. § 5: Please read the directions carefully. This paragraph refers to distributees only. Insert the proper number of distributees in the proper category, insert "NO" in prior classes, then put an "X" in the remaining categories.

2. § 6: All persons that are distributees in §5 must be listed in §6. Also include the names and address of any primary executor, all persons adversely affected by the purported exercise by such Will of any power of appointment, of all persons adversely affected by any codicil and of all persons having an interest under any other will of the decedent on file in the Surrogate's Court.

3. Jurisdiction must be obtained over all persons listed in §6 by waiver or citation.

4. Sole Distributee Affidavit - If decedent was survived by only one distributee

5. Family Tree - In Oswego County a family tree is required when the distributees are more remote than the mother and father of the decedent.

F. Persons Entitled to Notice of Probate
§7 List all the persons and organizations, other than those already listed in §6 that are designated or named in the will as provided in the directions of the petition. If the decedent was survived by a spouse and one or both parents, but no issue, the parents may have a right to share in the recovery for wrongful death and must be given notice of probate.

G. Prayer for Relief
§7 List all the persons and organizations, other than those already listed in §6 that are designated or named in the will as provided in the directions of the petition. If the decedent was survived by a spouse and one or both parents, but no issue, the parents may have a right to share in the recovery for wrongful death and must be given notice of probate.

1. If Letters of Trusteeship are requested and the will does not dispense with a bond, a bond may be required.

2. Each trust for which letters will be issued must be listed separately.

3. If Preliminary Letters are required submit appropriate form.

4. If Letter of Administration CTA are requested a bond may be necessary.

H. Verification, Oath and designation of the clerk
Be sure the address and name is consistent with that on petition if petitioner is receiving letters.

I. Decree

THIS MATERIAL IS PROVIDED FOR INFORMATIONAL/TRAINING PURPOSES ONLY. It is intended for use in conjunction with review of the applicable statute and rules of the Surrogate's Court and the Surrogate's Court Operations Manual.