The purpose of this guide is to help you understand probate, the New York Probate process and the proceedings held in the Surrogate’s Court.
What is Probate?
Probate is the legal process through which a deceased person's estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid off. Probate property is distributed according to the decedent's last will and testament, if there is one, or according to state law if no will exists.
What is The Purpose of Probate?
The purpose of probate is simply a fraud preventive mechanism after someone dies. This is strictly to freeze the estate of the dead owner until the preceding judge of the case verifies the authenticity and validity of the Will, notifying all parties involved as well as proper identification and appraisal of the properties in the estate.
What is The New York Probate Process?
There are two types of proceedings that can be commenced in a New York State Surrogate’s Court in order to obtain authority to act as fiduciary of an estate: an administration proceeding and a probate proceeding.
The probate process begins with the filing of the petition with the probate court to either, admit the will to probate and appoint the executor or, if there is no will, appoint an administrator of the estate.
Administration Proceeding When a person dies without a Last Will, that person is said to have died “intestate.” Where there is no Will, the individual died without naming a person to handle their affairs or manage their estate. Since the person died without naming anyone to act as fiduciary or beneficiaries, the law sets forth who may become the fiduciary of the estate and who is entitled to share in the decedent’s assets. Under the laws of the Surrogate’s Court Proceedings Act (SCPA § 1001), a hierarchy of individuals who may obtain Letters of Administration from the Court where a decedent dies without a will is set forth.
The Estates Powers and Trust Laws (EPTL § 4-1.1), sets forth the distribution of an intestate decedent’s property or the probate proceedings. Probate Proceeding Where a person dies with a Will, the person is said to have died testate. Their Last Will & Testament must be filed with the Surrogate’s Court and proven to be valid. The Probate process is how the Court accepts the Will of a person and grants authority to a qualified fiduciary to manage that person’s estate. If the Court decides that the Will is valid, it will issue “Letters Testamentary” to the nominated Executor, which appoints him as the Executor and authorizes him to collect the decedent’s probate assets, pay the decedent’s taxes and bills, and distribute the decedent’s probate assets to the beneficiaries named in the decedent’s will.
How long is the Probate process in New York?
If the estate is straightforward (all persons with an interest in the estate have been found and no one has contested to the probate of the will), the probate process should only take about three to six months. However, if the estate is more complicated, it can take years before the decedent’s will is probated.
Is Probate necessary?
The Probate process is only necessary where a person has died and left probate assets. (valued at $30,000 or more.) If a person dies with probate assets in his or her estate, the executor nominated in the decedent’s Will must probate the decedent’s will in order to collect and distribute those probate assets. Therefore, if there are are no probate assets, or when there are no assets, then there is no need to probate.
What is a Probate asset?
Probate assets includes all property that is owned individually by the decedent and does not pass by operation of law. Any property that has a named beneficiary is not a probate asset.
What are costs associated with a New York Probate?
The costs associated with probate proceedings vary greatly dependent on the complexities of each particular case. Legal fees associated with a simple probate will be comparatively modest in comparison to those in a contested probate matter.
Contact us for a list of pre-vetted New York State Probate Attorneys that can assist you. This article is not a source of legal advice. Please consult a legal professional for legal assistance.
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