How Do I Get This Lawyer to Do His Duty?

[Harmony123]

What is the name of your state (only U.S. law)? New York

When my mother died I tried to handle the probate myself since it's a very small estate. However, without the Letters Testamentary I can't get the items from her safety deposit box or her modest bank account. When I went to file the papers, the intake clerk at Surrogates Court told me I couldn't get those letters because the will wasn't notarized. However, she said this defect could easily be remedied with two affadavits of witness--and two out of the three witnesses were the attorney and his partner.

So, I got a certified copy of the will, and the two affadavits, and dropped them off at the attorney's office. It has been several weeks, and every time I've called, he's told me he'll "read it over the weekend" This isn't a complex legal matter. It's a 3 page stock will he prepared (incompetently it looks like, though I haven't said that to him) and a one-page affadavit of witness form straight from the Surrogate's Court I'd assume he'd be familiar with in practice.

I'm not an attorney myself, and am not sure what to do. I've talked to Surrogates Court asking if anyone can tell me if I can supponea him and how to do it, but so far I haven't gotten answers. I tried calling Legal Aid, and they told me no attorney will go against another attorney and that this is a matter for the New York Bar. I have the forms of complaint, but don't want to take that step yet. Among other things, my aunt's will is in the safety deposit box and was also prepared by him--and I suspect it will turn out defective too.

I'm thinking of writing a letter telling him my next step will be to report him to the bar. But I hate making this an adversarial thing, and am not sure exactly what note/tone to take with him to expedite it. In the time it took to read any letter, he could check the boxes on the form, sign it in front of a notary and get this over with--but instead he's been blowing me off for weeks. Suggestions?

[You Are Guilty]

Practical advice? Offer to pay him to sign the damn things.

Strict "legal" advice? You're in between a rock and a hard place. He likely doesn't have any duty to fill out the witness affidavits - his client is deceased and you have no relationship to him (thus, the practical advice, above).

However, not having the will notarized seems like a pretty big "whoops", so if you would like to proceed down that route, here's the method:
http://www.courts.state.ny.us/ip/attorneygrievance/complaints.shtml

I will caution that should you file a formal grievance against the lawyer, you can pretty much ensure that he will never sign the affidavit(s) you need, so take that into consideration when making your decision. Similarly, most lawyers I know do not take kindly to being threatened with a formal grievance, which would also likely result in your papers going straight to the bottom of his "to-do" pile.

Good luck.

[Harmony123]

What's important about this is getting him to sign, however I have two huge problems paying him.

1) If I could afford to pay an attorney, I wouldn't have gone through the headache of filing for probate myself. (and I wouldn't be on a free advice board)

2) He was incompetent times two, and then doesn't even have the decency to correct his error even though it would be a matter of moments. Why in the world should I give him my business?

I can't believe that a lawyer can screw someone over this way, and there's no remedy. Is there truly no ethical obligation as an officer of the court to fill out those affadavits?

[Zigner]

Originally Posted by Harmony123

What's important about this is getting him to sign, however I have two huge problems paying him.

1) If I could afford to pay an attorney, I wouldn't have gone through the headache of filing for probate myself. (and I wouldn't be on a free advice board)

2) He was incompetent times two, and then doesn't even have the decency to correct his error even though it would be a matter of moments. Why in the world should I give him my business?

I can't believe that a lawyer can screw someone over this way, and there's no remedy. Is there truly no ethical obligation as an officer of the court to fill out those affadavits?

You're not going to have to pay a huge fee for the signature.

[Dandy Don]

What is the value of the estate?

Get a second opinion from a local probate attorney about how to handle this. You may need to fire him and get another attorney for consultation purposes only to advise you through the process.

It was a mistake to have relied on advice from a clerk in the surrogate's office. Sometimes they know what the law is, but in most cases they don't know the law.

There may be a way to get the results you want first and then worry about filing a grievance against him later.

[anteater]

Originally Posted by Dandy Don

What is the value of the estate?

Get a second opinion from a local probate attorney about how to handle this. You may need to fire him and get another attorney for consultation purposes only to advise you through the process.

It was a mistake to have relied on advice from a clerk in the surrogate's office. Sometimes they know what the law is, but in most cases they don't know the law.

There may be a way to get the results you want first and then worry about filing a grievance against him later.

Try actually reading the original post!

The OP has not hired the attorney. The attorney is being asked to attest to witnessing the signing of the will.

And, the clerk is correct. If the will was not made self-proving at the time it was executed by having a notarized affidavit signed by the testator and witnesses, then the witness affidavits need to be obtained before the will can be admitted.

The value of the estate is irrelevant.

[Harmony123]

Originally Posted by anteater

Try actually reading the original post!

The OP has not hired the attorney. The attorney is being asked to attest to witnessing the signing of the will.

And, the clerk is correct. If the will was not made self-proving at the time it was executed by having a notarized affidavit signed by the testator and witnesses, then the witness affidavits need to be obtained before the will can be admitted.

That's exactly the matter. This man is not my attorney--although he was my mother's, and for that matter he prepared my aunt's will as well (she's still living and that will is in the safety deposit box)

As for hiring a probate attorney, if I could afford that, I wouldn't be doing the probate myself or asking questions on this forum--and I was told by Legal Aide when I asked what I could do about the Witness Affadavits that "no attorney will work against another attorney" and that I had to go through the Bar, that they wouldn't advise me.

I did get a suggestion on another forum to send him a letter saying the following:

Write a letter to Lawyer X and a letter to Lawyer Y. Something like:

Dear X/Y:

Re: Affidavit of Witness in the Will of ___, Deceased

Further to our recent conversations, I request your cooperation in the above captioned matter. Despite the comparatively small size of the estate, this is a matter of some significance to me. As discussed, I would prefer to settle this as expeditiously as possible.

Attached please find an Affidavit of Witness for your execution, and a certified true copy of the Will of ____. Please sign the Affidavit as indicated. I will be pleased to pick it up at your offices to minimize any inconvenience to you.

I will attend at your offices on April 31, 2009 to pick up your executed copy of the Affidavit of Witness. In the event you are unable or unwilling to execute the Affidavit as requested, please notify the undersigned, that I may take steps as appropriate. Should you have any questions or concerns, please do not hesitate to contact me.

I trust the foregoing meets with your approval.

Sincerely,

Z.

Yes, attach copies of the documents. If they're giving you the runaround, odds are they'll have lost the copies you sent already.

===============

So I'll be dropping that off Monday.

I'm really, really reluctant to pay THIS lawyer one cent if I don't have to.

And as soon as the probate does go through and I get the Letters Testamentory, I'm filing that grievance. He's absolutely incompetent and there should be consequences for how he's acted, especially given his refusal to correct his mistake in a straightforward and timely manner.

If this doesn't get action, I'll pay him to sign the things, but it feels like extortion under the circumstances.

[>Charlotte<]

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