My friend passed away last week. He had a will in which I was named Executrix and sole beneficiary. His estate is very small--several thousand dollars in a checking account and no other assets or debts (although the funeral home is charging more than the amount remaining in the checking account). The lawyer who drew up the will in 2004 died in 2010 and after considerable searching I found the legal firm that has the will and files. At this point (from a conversation yesterday with the person who answered the phone) they have refused to send me the original signed and notarized will. I will be having a phone consultation with an attorney from the firm tomorrow. This is taking place in Onondaga County, New York State.

What should I say to the lawyer who has the will about sending it to me? What right does he have to keep it? If I'm able to get the lawyer to agree to sending me the will, what are the steps I need to take to deal with this process myself? Should I request the files the lawyer has also? From my research it appears that probate isn't necessary for an estate so small. I have located a Small Estate Affidavit.

The funeral director is arranging for the death certificates as soon as I can tell her how many I need and whether they should be certified or photo copies.

Please let me know if any clarification is needed. Thank you for your help.

Depending on how you feel about doing it yourself, from what you indicate as assets, I would do it myself. First you need a Certified Death Certificate and the will. Then you go to the locale probate office of your county and they will guide you. I have done 2 wills, no issues whatsoever. If any of the documents indicate TOD and you are beneficiary, probate is not needed. Probate is not needed for insurance benefits. What is your relation to the "friend"? Unless the will specifies the attorney is involved, they are required to give you the will since your friend is the owner of the will.
"He had a will in which I was named Executrix and sole beneficiary". Have you seen a copy of the will?

I'm willing to do it myself. I have a copy of the will before it was signed and notarized. My relationship to my friend is friend. What is TOD? Thank you for your comments.

I doubt any lawyer would send you anything with just a phone call. I sure wouldn't and you would have to sign a document saying the will was turned over to you. That being said, the process for obtaining what you need to do this yourself is fairly simple and straight forward, and pretty cheap, and can be found online with a simple Google search. I think there is a time constraint though.

New York Small Estate Affidavit SCPA 1310 - Free Online Forms (http://www.nycprobate.com/page28.html)


A decedent died with a bank account balance of $4,500. He had no close relatives so a friend arranged and paid for his funeral. After six months have passed, the friend presents a small estate affidavit a copy of the paid funeral bill to the bank. The bank pays the balance of the account, $4,500, to the friend as reimbursement of funeral expenses.

You did note that the funeral expenses are more than what he has in the bank.

TOD is time of death. You may not be aware of any changes he may have made when he went to these lawyers to have the will signed and notarized.

My research say you don't need the will, nor probate, just a document that says you paid for the funeral, and the affidavit of a small estate form to present to the bank, properly filed.

I see no reason to pay for the funeral before you get the funds. When my parents died, the funeral home waited and even helped with all this. Of course I was family. Your funeral director might be more cautious.
As for death certificates, it's probably this: you need ONE notarized one, and that costs about $20.
You might need copies for some things like life insurance, as long as they are presented within 6 months of death. (I bought 10 notarized ones @ 20 each my mistake.)

Sorry, TOD is Transferrable On Death. If an IRA or other negotiable item is marked that way, it goes directly to the beneficiary without probate.

Sorry, TOD is Transferrable On Death. If an IRA or other negotiable item is marked that way, it goes directly to the beneficiary without probate.

OOPS, I was close(?). 8/

I'm making progress. I located the lawyer with the will and he agreed to send it to me with the files return receipt requested (of course). He said it will be a mess if the USPS loses it, but I'll take my chances. He said the funeral director is charging way too much ($2,460). It should be around $1,300 for what she is doing, especially since the paperwork for organ donation was in order. (Since then I checked with 4 funeral homes locally and the prices were $1,070-$1,985 without adjusting for the organ donation part.) He said if I hire him, they (his firm) will charge a flat fee of $500 to take the will and death certificate to Probate Court (Onondaga County, NY) which will provide the Letters of Appointment, knock down the price of the funeral home, and close the Estate. He said if I file a Small Estate Affidavit it will speed up the process.

It will be a few days until the funeral director picks up the certified death certificates since preparation of them is behind schedule. I requested 2 certified copies: One to submit to the probate office with the certified will. The other goes to the bank when it's time to close the checking account and then they'll return the death certificate to me. The first one will cost $30 and the second one is $15.

I've tried to be thorough here. Even though this is in New York and might be different in another state, maybe it will help someone else.

Thank you all for your input. Please feel free to add any other information or suggestions.

You seems to be doing a great job on your own Coblas! 8D

Thank you for the encouragement. I have another question. Is it necessary for me to file a Small Estate Affidavit since there was a will and I'm the sole beneficiary? I'm finding conflicting information about this.

Why add the time and expense of probating a will on a very small estate if you don't have to? I don't know what it costs to probate a will in NY, or how long it takes, but as you have noted, it all goes to his funeral expenses any way. Do the math both ways, probating the will, or not probating the will. Which is cheaper, easier, better for YOU?

I don't understand. I thought I have to take the original will and certified death certificate to Probate Court and get the Letter of Appointment within 30 days of death. Isn't that required?

Yes those are the requirements on the surface, but many court have a designated FORMAT they require, so you will probably run into those technical types of things for filing or submitting a form for filing.

This is the probate process in NY. Since your friend is under the $30,000 thresh hold, then a probate isn't needed. Why would you consider it if the only issue is reimbursement for funeral costs, and a few thousand in a checking account?

http://www.nycourts.gov/courthelp/WhenSomeoneDies/probate.shtml



When a Decedent (the person who died) had a Will then the Will must be filed in Surrogate's Court and admitted for probate. If the Decedent died without a Will, then an
administration (http://www.nycourts.gov/courthelp/WhenSomeoneDies/administration.shtml)
proceeding should be file. If the Decedent had less than $30,000 of personal property with a Will or without a Will, then a
small estate (http://www.nycourts.gov/courthelp/WhenSomeoneDies/smallEstate.shtml)
, also called a voluntary administration proceeding, can be filed instead.


What am I missing here? What has the lawyer said? Oh wait unless the will is probated then his services cannot be paid for except by YOU personally, am I correct? It seems like you have to follow the probate rules then, if I am, just to protect yourself against any unseen complications.

I still don't think I am getting the whole story here as your position has changed, and I am just curious why is all. I know from experience that things do get complicated real quick when dealing with the law, no matter the state.

I'm sorry about the confusion. Nothing has changed. I don't understand the process or terminology and I want to be sure I'm doing everything correctly. I don't think I need the lawyer. What unseen complications might occur if I don't probate the will?

I don't think you need a lawyer either. If there is a problem getting reimbursed for your funeral costs from his bank account, I'm pretty sure they will fill you in how to rectify it. Any short fall comes from YOUR pocket. Probating the will just gets the lawyer paid for services rendered whatever that requires. It would seem that you could have used a more cost effective funeral home by calling around before hand, and maybe that's still possible, unless you have signed a contract, or they have already started to fulfill their end of that contract.

Fact is, while you can reasonably assume things will go smoothly, there is always a chance of something coming up, which is no reason not to proceed and get your friend buried in a timely matter. I wouldn't expect to be reimbursed the same day you present your paper work though. They have their own process and policies to go through so just do your part. Take it step by step.

Good Luck.

As I understand the law for the bank to issue the balance of the bank account to you there will need to be probate. If the bank account had ben joint survivorship then you could do away with probate. Frankly, the $500 fee seems reasonable.

Since I'm getting conflicting information I think I'll have the will admitted for probate myself and file a Small Estate Affidavit, too. I also plan to negotiate with the funeral director. My friend's body was already donated to the medical school on December 30th, the day after his death. I'm not concerned about being inconvenienced or paying for some of this myself. I just want everything to be done correctly. I also hope this process helps me come to terms with my loss.

I'm now in possession of my friend's original will and 2 certified death certificates. Today I located a Small Estate Settlement Form (Affidavit of Voluntary Administration) from the New York State Courts website but I'm at a loss. If I'm reading it correctly, it can't be filed if an application for probate has already been made (hasn't been yet), and the filer must agree to open an estate bank account (which makes no sense in this case). The filer must be a "disinterested party" (with no interest in the outcome of the case). Also, I have no information about my friend's relatives, a requirement in the Family Tree Affidavit that's included. I assume if I had the will probated, I'd have to answer the same questions. Any suggestions?

That lawyer is starting to look better right now.

I was thinking that. But isn't he likely to ask me for the same information to probate the will? I'd like to be as prepared as possible.

You have the easy part, just answer honestly, and let the expert with the knowledge and resources earn his pay.

Relax guy!

As I mentioned, the lawyer I already spoke to (who sent me the original will and would be willing to handle opening probate, negotiating with the funeral director, and closing probate) told me if I file the Small Estate Affidavit it would speed up the process. Since that conversation, I noticed that the form for the Affidavit states that it can't be filed if an application for probate has already been filed. I think he should know that. I haven't been able to find any information about him. I've been looking for another lawyer, but I realize they might not want to waste their time with this small case so I might have to go back to the first one. Very frustrating.

fyi--I'm female.

Please accept my apology and forgive my assumption.



I've been looking for another lawyer, but I realize they might not want to waste their time with this small case so I might have to go back to the first one. Very frustrating.

At this point you can always do a Google check on this lawyer, and also review others in your area. Your friend trusted him enough to use him, and that would be good enough for me to keep using him, unless you know of a better lawyer that YOU trusted. Size may not matter as much a you think, and there is nothing lost in inquiring.

It's a daunting process for a novice, man or woman, I get that, and I get its worse when you are in the middle of mourning a great loss. Got a trusted friend to support you through this event that's obviously still fresh on your mind and heart? Sorry I could not be of more help, but good luck and sorry for your loss.

I did several Google checks and have found no listing of this lawyer anywhere. The lawyer who prepared the will passed away in 2010 and I finally located this firm as having the deceased lawyer's files. No way to know how many hands it went through before they got it. He isn't listed on their website which shows the firm specializes in business, environmental, liquor licenses, and real estate. When I called them for the will they said he'd call me since he has done probate. He did call and that was my only conversation with him so far. (Please see my comments from January 4, 2018.) So far I've gotten only one call back from another firm which was a rejection. I'm waiting for replies from two others. I may have to go with lawyer #1 since I don't know what to do about the affidavit I'd have to sign (my message from January 13, 2018).

Thank you for trying to help.

Well, I'm back. I received the original will from the lawyer and the staples had been removed and replaced. I knew from my research that this is not okay for obvious reasons. The lawyer who sent me the original will did not return my call about it. When I told one lawyer about it he said I need a staples affidavit. I researched it and prepared one. That same lawyer is not willing to take the case because it's not worth it. I got the same response from 2 other lawyers. I'm not eligible for free legal services in my area (New York State). Even if I was, they would only help me prepare the Small Estate Affidavit which I think I've done correctly myself. Bottom line--do I have to file anything or can I just pay the bills myself and lose what's left in my friend's checking account? Surrogate's Court said they can't advise me and that I need to check with a lawyer.

I don't think you have to file anything. You have gone from pillar to post with this. Just end it all and pay the bills yourself and end this and move on so you don't drive yourself nuts with it. Or, coblas, do you have issues in your day to day life making decisions that hinder the end result; and you are never ever sure YOU have not made the right one? I am not being rude, and respect what you want to do correctly, but this could go on and on and on without closure.

Bury your friend, mourn and heal, take your documents to the bank and claim repayment for his burial at the prescribed time, Wait for the process to proceed and complete itself. That may take time. At some point the research stops, and you must act.

It seem from what you wrote you want to be reimbursed, and get paid beyond that. For that the will must be probated and additional and more expensive filing fees will likely eat up any gain you expect. You can research all that later and decide on what's the next step if any.

In such a small estate, the added TIME and stress may not even be worth it. Do what you can and be done with this before you drive yourself crazy, making the healing process even harder. Your state gives you an easy way out, so why are you complicating an already complicated process?

This whole thing will be better handled if you do what you can and let your emotional dust settle. You can't rush that either.