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Probate in New York FAQ
Probate can be complex and time-consuming. It’s governed by laws that can be difficult for a layperson to understand. Here are some of the most frequently asked questions that attorneys are asked about probate in New York.
- What Is Probate?
- What Needs to Be Filed When Submitting a Will to Probate in New York?
- What Makes a Will Valid in New York?
- What Happens Once a Will Is Validated?
- What Are the Responsibilities of an Executor?
- Who Inherits a Decedent’s Property in New York?
- Consult a Seasoned Probate Attorney
1. What Is Probate?
Probate is the judicial process by which a will is submitted to the Surrogate’s Court in order to validate it and a decedent’s assets and possessions are distributed to beneficiaries according to the terms of a valid will after any debts and taxes are paid. The probate proceedings will take place in the Surrogate’s Court in the county where the decedent had been living when he or she passed away. For example, if the decedent died while living in Bronx County, the will must be submitted to probate in the Bronx County Surrogate’s Court
2. What Needs to Be Filed When Submitting a Will to Probate in New York?
When submitting a will to probate, the person submitting the will, who is usually the designated executor, must present the original will, as well as a death certificate, a probate petition, and other supporting documents to the Surrogate’s Court.
3. What Makes a Will Valid in New York?
A will is valid in New York when the testator, who is the person making the will, has the requisite testamentary capacity and intent under EPTL section 3-1.1 by being of sound mind and at least 18 years old and other formalities are also met. A testator whose cognition is impaired because of mental illness or incapacity may not have the sound mind to make a valid will. Additionally, the testator’s decisions with regard to the will must be voluntary and free of restraint. Other formalities that must be met are that the will is in writing and signed in the presence of two witnesses whose signatures are also at the bottom of the will.
4. What Happens Once a Will Is Validated?
Once a will is validated, the court will appoint an executor. Usually, the executor is someone chosen by the testator and named in the will. Typically, the executor is also the person who files the will to be probated.
5. What Are the Responsibilities of an Executor?
The responsibilities of an executor are to fulfill a range of tasks that need to be completed to settle the decedent’s estate according to his or her wishes and in accord with the law in the course of probate. The executor will need to collect the decedent’s assets and inventory them. In some cases, assets must be sold to pay the decedent’s debts, income taxes, estate taxes, gift taxes, medical expenses and funeral costs; determining whether the estate has enough money to pay all of these debts and expenses is the executor’s responsibility. The executor is responsible for making sure all taxes are paid, but the executor is not obliged to seek out every creditor’s claim. When an estate is large and complex, an executor may need to obtain professional help on how to manage the assets. After debts and taxes have been paid, the executor has the responsibility of distributing whatever assets are left in line with the terms of the decedent’s will and any other binding obligations, such as contracts.
It can be helpful for the executor to retain an attorney to make sure they understand the terms of the will and that they are fulfilling all of their fiduciary obligations in this role. The executor may need to account to the will’s beneficiaries that all assets were gathered, all money was paid or distributed to creditors and tax authorities, and all gains and losses were accounted for in the course of probate.
6. Who Inherits a Decedent’s Property in New York?
The terms of a carefully prepared will specify who will inherit a decedent’s property in New York. The will may be subject to certain state law restrictions, which is one reason why it’s so important to retain a knowledgeable lawyer to prepare the will. For instance, a surviving spouse has a right to an elective share of the decedent’s estate irrespective of the will’s terms. That share is the greater of $50,000 or 1/3 of the net estate.
A decedent who dies without a will dies “intestate” and in that case, rules of intestacy apply to determine the line of succession for the decedent’s property. The estate will be distributed to heirs based on their relationship to the deceased, beginning with a surviving spouse, and then moving in turn to children, parents, siblings, and more distant relatives.
7. Consult a Seasoned Probate Attorney
There may be a lot at stake in probate proceedings. Whether you are an interested party, beneficiary, heir, executor, estate administrator, or trustee, it can be very important to discuss your case with a knowledgeable New York probate lawyer. Call Jules M. Haas now for a free confidential review of your case at (212) 355-2575 or contact him through his online form. He offers reasonable and flexible fee arrangements.