Probate Process

The New York probate process begins after a loved one passes away. Assets valued at $30,000 or more held in the decedent’s sole name at the time of the decedent death are subject to probate under New York law. Assets may include real property, cash in a bank account or other financial account, stocks and bonds, business interests, an automobile or other vehicle or vessel. Assets held jointly, that have a named beneficiary or have been transferred to a trust are exempt from probate.

Since most family members are not familiar with the NY probate and estate administration process, they usually hire a New York probate lawyer to help prepare the necessary paperwork, attend Court hearings, resolve disputes that may arise among beneficiaries or other interested parties to the estate and make sure Court and tax deadlines are met.

Locating the Will

The first step in an estate administration is for the family of the decedent to determine whether the decedent left a will. Once the will has been located, read and an executor has been named in the will, the probate process begins. The executor/personal representative is in charge of administering the estate, which includes managing the estate assets. Most of the time the personal representative is the surviving spouse, one of the decedent’s children or another close family member.

Commencing the probate process in NYS

The personal representative, with the assistance of a New York estate administration attorney, will file the petition for probate with the New York Surrogate’s Court, together with the original will and certified death certificate of the decedent. A hearing date will be set by the Court admitting the will to probate. A party may contest the validity of the will at this time as well. Grounds for a will contest may include that the testator was mentally incapacitated, there was undue influence, duress, coercion or fraud. At the Court hearing, the Court will review the will and hear any will contest matters. Once it has been determined that the will is valid, the will is admitted to probate, and the Court will issue letters testamentary authorizing the personal representative to act on behalf of the estate.

When there is no will or the will has been determined to be invalid, then the decedent will be said to have died without a will and an intestate proceeding will need to be filed with the New York Surrogate’s Court instead. When a decedent dies intestate in New York, the New York intestate probate statutes determine who is entitled to inherit the decedent’s assets, which may not necessarily reflect the decedent’s wishes and intent. The Court will appoint an administrator, and issue letters of administration. The administrator has basically all the same authority and duties as the personal representative/executor.

The personal representative or administrator can take the Court issued letters to the decedent’s bank in order to close out bank accounts and transfer funds to an estate account and to access the decedent’s safe deposit box, if the decedent had one. The letters may also be given to any other financial institution or person in connection with management of the estate assets or probate administration.

Stages of Estate Administration in New York

A probate estate administration consists of the following primary stages:

The first stage involves the personal representative compiling a list of all the decedent’s assets, having the assets appraised and then determining the total value of the estate. An inventory of the assets must be filed with the Court. Determining the assets is important for two reasons- to make sure there are enough assets to pay off creditors and to determine the total value of the estate and whether there are any estate taxes due. The attorney can assist with the preparation of any federal and New York estate tax returns that must be filed within the statutory prescribed period.

The second stage involves the personal representative reviewing and paying the decedent’s bills, creditor’s claims and other expenses. Typically an estate checking account is opened by the personal representative to pay estate expenses, including funeral expenses, attorney’s fees, appraiser’s fees, creditor’s claims and the decedent’s personal household bills.

Neither the personal representative nor the beneficiaries are personally responsible for paying the decedent’s debts. The personal representative has the duty of determining whether assets need to be sold to pay bills, and which bills to pay, when there are not enough assets. Many times the personal representative will discuss these decisions with the beneficiaries to avoid any disputes later on.

Creditors must file a creditor’s claim with the prescribed statutory period. An example of a creditor’s claim may be a decedent’s credit card bill. When a creditor, whose claim has been denied is unhappy, the creditor may file a lawsuit against the estate challenging the personal representative’s decision. The Court will then rule on the matter.

The third stage occurs once all statutory waiting periods have passed and claims, expenses and taxes have been paid. The personal representative will submit a final settlement for review by the beneficiaries. If a beneficiary or interested party to the estate wants to challenge the accounting, they can do so by filing a petition with the Surrogate’s Court. Reasons to challenge an accounting may include a breach of fiduciary duty by the personal representative.

An example of a breach of fiduciary duty might be a bad business decision made by the personal representative that caused financial harm to the estate. The party making the claim must have sufficient grounds to show that the personal representative breached a fiduciary duty. The Court may remove the fiduciary and also order the fiduciary to pay restitution to the estate or the beneficiaries.

If there are no challenges to the accounting by the beneficiaries or any other interested parties to the estate, then the personal representative will distribute the assets to the beneficiaries and the estate will be wound up and closed.

Hire a New York Probate and Estate Attorney

If you are involved in a New York probate administration, you should contact a New York probate and estate attorney to help you with the process. Mike Saint Pre, Esq. represents estates, personal representatives, beneficiaries, heirs and other parties to an estate regarding estate litigation and routine estate probate matters. Using a New York probate and estate attorney assures that the probate process will go smoother and the beneficiaries will receive their inheritances in a quicker and more efficient manner.