Do I need to use the drafting attorney to probate a will?

The Facts: My aunt Mary died recently. She was widowed and had no children. My father, her only sibling, died a few years ago. In her will Mary named me as the executrix of her estate and the sole beneficiary. The attorney who drafted the will expected to be retained to handle Mary’s estate but, I have worked with a different attorney and want to work with him in connection with the probate of Mary’s estate. The drafting attorney has the original will and has refused to give it to me.

The Questions: Must I retain the drafting attorney to handle the probate of my aunt’s will? If not, must he turn the will over to me or my attorney?

The Answer: The short answer to your first question is an emphatic “NO”! Although many attorney assume and likely hope that the families of their estate planning clients will retain them to handle the estates of those clients when they die, there is absolutely no legal basis for the drafting attorney to insist that he/she be retained by the named executor to assist with the probate of the estate. If your aunt wanted the drafting attorney to handle her estate, she certainly could have named him as executor. Since she named you, you are free to retain any attorney you want to assist you with the probate process.

As for whether the drafting attorney must provide you or your attorney with the original will, it would clearly be better if the drafting attorney simply agreed to turn the will over to you or your attorney. However, if that does happen, all is not lost since New York law provides a mechanism for compelling a person who is holding an original will of a decedent to file that will with the surrogate’s court. If polite requests for the will are ignored, your attorney can commence a proceeding in the surrogate’s court to compel the drafting attorney to produce the will. If the court determines that the drafting attorney did not have good cause to withhold the will, the court may not only order the attorney to file the original will with the court but, can also order the drafting attorney to reimburse you for the attorney’s fees you paid in connection with the proceeding. Obviously, unless there is a good reason why the drafting attorney will not provide you or your attorney with the will, it is in his/her best interest to simply turn it over without the need for court intervention.

This article first appeared in December, 2020.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected].