How Probate Works in New York City

All estates must go through the court system. This process is called probate, and it involves multiple steps.

The executor can distribute assets only during the last step of the process.

You would typically need a probate attorney.

Uncontested Probate

The uncontested probate process has several steps, which you have to follow in the exact order:

• You file the probate petition packet with the Surrogate’s Court

  The probate process starts by filing a petition for probate or administration with the New York Surrogate’s Court. You file this in the county where the deceased person lived. When someone dies without a will, we file a petition for administration. When someone dies with a will, we file a petition for probate.

• The person who filed the petition notifies all the parties

  You have to notify all potential heirs and everyone named in the will. This has to be done.

• The court appoints an executor or administrator

  The Court selects an executor or administrator if no parties object. An executor represents an estate with a will. An administrator represents an estate without a will. If one of the parties files objections the court will not appoint an executor or administrator until the objections are heard. But the court may appoint a preliminary executor or limited administrator for the time-being.

• The executor inventories assets

  The executor should file an inventory of the estate within 6 months of their appointment. It lists the types of assets contained in the estate and their approximate value.

• The executor pays expenses, debts and taxes

  The executor must pay all expenses and resolve unpaid debts and taxes.

• The executor distributes the remaining assets

  Finally, the executor distributes the remaining assets to heirs. If there is a will, he follows the will. If there is no will, he follows state law.

The probate estate includes only property in the decedent’s sole name. Joint or beneficiary assets don’t count in determining value.

Contested Probate

A probate matter is contested when one of the following is happening:

• A will contest
• Claims of missing assets
• Disagreements over who should be in charge
• Disagreements over who are the rightful heirs
• Complaints about the executor

We will discuss each one of the contested probate scenarios.

A Will Contest

If someone is excluded from the will, they will likely try to contest it, on one or more of the following grounds:

• Questions about the will-maker’s mental capacity
• Undue influence from someone pressuring the will-maker
• Improper execution of the will
• Forgery
• Fraud

Claims of Missing Assets

New York law has a process for heirs to recover estate assets.

• Discovery proceedings

  are used to get information from anyone holding the decedent’s property.

• Turnover proceedings

  are used to recover specific property or money owed to the estate.

If successful, the court issues an order giving the property back to the rightful heirs.

Disagreements Over Who Should be In Charge

Sometimes, multiple people in the decedent’s circles file petitions to become an estate administrator. Common disputes include:

• Surviving spouse vs. adult children
• Surviving spouse vs. adult children from a former marriage
• Children from different marriages
• Multiple siblings
• Other relatives

Battling petitions filed with the Surrogate’s Court can lead to lengthy delays. And also drain estate assets in legal fees.

Disagreements Over Who Are The Rightful Heirs

Kinship proceedings establish rightful heirs when uncertain or disputed. This often happens with:

• Undetermined relatives
• Complex relationships
• People claiming to be heirs
• Heirs challenging the legitimacy of heirship claims of others

In New York, kinship proceeds as follows:

• The administrator proposes the distribution of assets to the designated heirs
• Potential heirs object to not getting a share
• Kinship hearing held
• The Surrogate’s Court issues a decree and formally declares the rightful heirs

In a kinship hearing, potential heirs present their evidence to prove their relationship to the decedent. This evidence usually includes an affidavit and testimony from a professional genealogist. The genealogist has conducted research and investigated the family tree of the decedent using public records.

Complaints About the Executor

Beneficiaries may have complaints about the executor, including:

• Improper expenses
• Taking estate assets
• Self-dealing
• Selling estate property to himself or his relatives
• Selling estate property below market value

At the Law Offices of Albert Goodwin, we provide comprehensive estate probate representation in New York City. We are located in Midtown Manhattan in New York City. You can call our office at 212-233-1233 or send us an email at [email protected] to discuss your situation.