After your father or mother dies, and after you take care of their burial, the question that comes up is what happens to their estate. If your father or mother has informed you of their estate plan, you may be aware of the existence of a will or a trust that will determine what happens to their assets after their death. If your mother or father did not leave a will, then you may need to find an estate attorney and apply to the Surrogate’s Court for a certificate authorizing you to conduct the affairs of their estate.
There is a total of three scenarios that are possible after your parent’s death. Either they left a will, left a trust or did not leave any document that governs how their estate is to be disposed of.
If your mother or father left a will, you can read the will to see what their final wishes are in regards to their estate. The person who is named as the executor of the will is the person charged with carrying out the wishes of your deceased parent. However, that person cannot act on the basis of the will alone. Rather, they must be appointed by the Surrogate’s Court as the person acting on behalf of the estate. The person will need to find an estate lawyer and have that lawyer apply to the court to get a “letters testamentary “ certificate in order to have the legal authority to act on behalf of the estate.
If your mother or father died without leaving a will, then property is distributed by default law called intestacy, described here, and the preference for the person who needs to apply to be in charge of the estate is described here.
If your mother or father left a trust, then there is no need to apply to the Surrogate’s Court. In New York, a trustee can act without court authorization or certification! All the trustee needs to do is to follow the terms of the trust.
Whoever is a beneficiary of a financial account can bring an original death certificate to the financial institution holding the account, and the financial institution would usually release the account to the beneficiary. Similarly, a life insurance company will disburse the life insurance proceeds upon receipt of an original death certificate.
If there is a disagreement over a will, trust, kinship, contents of the estate or any other issues, there will be an estate litigation proceeding, which is more complex and time-consuming than a plain court approval of a will.
The procedure to follow after the death of a parent is different depending on what documents they left or did not leave, behind.
Albert Goodwin, Esq. is a New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss spousal claims and rights to the estate. He is in practice since 2008. He represents individuals whose parents died, helping them navigate the red tape in the probate system and to resolve disagreements through court intervention. He can be reached at (212) 233-1233 or (718) 676-5635.