A family from Brooklyn recently brought me a will their father signed in 1998. The problem? He had since remarried, sold his original business, and started a new one with a different partner. The will reflected none of it. Their journey through Kings County Surrogate’s Court would be a long one, filled with conflict that could have been avoided.
Probate is the court-supervised process of validating a will, paying off debts, and distributing what remains. It sounds straightforward. In my experience, it rarely is. The process is not just administrative—it is deeply personal, often happening at a time of grief and heightened family tension. When a person’s final wishes are unclear or challenged, the Surrogate’s Court becomes an arena for disputes that can fracture families and drain an inheritance.
When the Will Itself Is the Problem
The most common catalyst for a complicated probate is the will itself. A challenge to the document’s validity can bring the entire process to a standstill. These are not just arguments over who gets what; they are fundamental attacks on the legality of the will.
A will contest can be filed on several grounds. Perhaps a disinherited child claims a sibling exerted undue influence over an ailing parent. Or maybe someone alleges the person who signed the will—the testator—lacked the mental capacity to understand what they were doing. Forgery and improper execution are other common claims.
New York law provides a formal process for these challenges. Under Surrogate’s Court Procedure Act (SCPA) § 1404, objectants have the right to examine the attesting witnesses—the people who watched the testator sign the will—even before filing formal objections. This preliminary inquiry is designed to uncover evidence of wrongdoing. It can also be the first stage in a long and costly legal battle that pits family members against one another.
The Burden of the Executor
Serving as an executor is a significant responsibility, not an honorary title. The person named in the will becomes a fiduciary, with a legal duty to act in the best interests of the estate and its beneficiaries. This duty is absolute, and executors can be held personally liable for mistakes.
The role involves more than just reading a will. The executor must:
- Identify and gather all the decedent’s assets, from bank accounts to real estate to personal property.
- Notify all potential heirs and creditors.
- Pay all legitimate debts, taxes, and administrative expenses.
- Manage estate assets prudently until they can be distributed.
- Provide a formal accounting to the beneficiaries and the court.
This is a demanding job, especially for someone who is also grieving. I have seen executors struggle to value a business, manage a volatile stock portfolio, or deal with beneficiaries who demand their inheritance immediately. A single misstep—like distributing assets before all creditor claims are settled—can result in the executor having to pay the debt from their own pocket. This is not a role to be taken lightly.
The Challenge of Complex Assets
Not all assets are as simple as a savings account. When an estate includes hard-to-value property, the probate process becomes significantly more complex. Think of a share in a privately held family business, a co-op apartment in Manhattan with its own transfer rules, or a portfolio of art and collectibles.
Valuing these assets requires specialized appraisals. Disagreements over value are common among beneficiaries, and the IRS will have its own opinion for estate tax purposes. An executor has the fiduciary duty to get this right. Selling such an asset to pay debts or facilitate distribution introduces another layer of complexity, requiring careful market timing and negotiation.
The goal is to achieve a fair distribution and preserve the legacy the decedent intended to leave. But when assets are illiquid or their value is subjective, that goal is difficult to reach without a deliberate strategy.
The probate process is a necessary legal step, but it is also a landscape of potential conflict. Stewardship of a legacy requires anticipating these challenges. A carefully drafted estate plan—often using trusts to bypass probate entirely—is the most effective way to protect a family from the stress and expense of a public court process.
If you have been named as an executor, your first prudent step is to understand the document you are responsible for defending. We offer a private consultation to review a will and identify potential probate hurdles before you ever file papers with the court.
