Legal Question in Wills and Trusts in New York

Recovering fees for Motion to Compel Discovery
I was named Executor for estate of a cousin residing in New York. I advised the attorney who drafted the original will of the death, and asked him to submit the will to the attorney whom I retained to probate the will. It is 3 weeks and he has failed to do so. I have a conformed copy of the will in my possession.

My question is whether I can recover my attorney costs and court fees if we are obliged to file a Motion to Compel Production of the Will. I feel time is of the essence since my cousin owned property and we are paying monthly co-op fees each month; also, there are tax filing deadlines, etc. that necessitate timely action.

Also, please confirm if the filing fee for a will in New York (estate value is about $650,000) is $1,000. Thank you so much. Kindly advise me via e-mail if there are replies.

Asked on 3/07/03, 3:50 pm

3 Answers from Attorneys

Norman Nadel Norman Nadel, Esq.

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Re: Recovering fees for Motion to Compel Discovery

The recalcitrant attorney may be hit with the costs of any court action and possibly sanctions (your costs) if he refuses to deliver the Will when requested.

The filing fee is $1,000 for an estate valued in excess of $500,000.

Answered on 3/07/03, 4:10 pm

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Frank Lang Lang Law Firm PLLC

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Re: Recovering fees for Motion to Compel Discovery

Section 1401 of the Surrogate's Court Procedures Act (SPCA)authorizes a proceeding to compel production of a Will, and provides that a court MAY impose the reasonable attorneys fees of a petitioner on the respondent if it determines that the respondent did not have good cause to withhold production of the Will.

Just to be safe, I would have the new attorney send a letter warning the old attorney that a proceeding will be commenced if the Will is not produced immediately.

If it turns out he or she doesn't have the original Will, you may still be able to have your copy admitted to Probate under SCPA 1407, by proving that the original was lost or destroyed, and that your copy is true and correct.

Filing fees are set forth in SCPA 2402. For estates valued at over $500,000, the fee is $1,000.

Answered on 3/07/03, 4:17 pm

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