What is Probate in New York City

Probate is the court-supervised process of administering a deceased person’s estate. It involves validating a will, appointing an executor or administrator, identifying and inventorying the deceased person’s assets, paying their debts and taxes, and distributing the remaining assets to their heirs or beneficiaries.

You would typically need a probate attorney to help you with the process.

The probate process is overseen by the probate court in the county where the deceased person last resided. In New York, this probate court is called the Surrogate’s Court. The court appoints an executor named in the will or an administrator if there is no will to handle probate.

Why is Probate Necessary?

Probate serves important legal functions. It provides proof of the validity of the will and allows creditors to make claims against the estate. Probate also creates a public record of asset transfers. This prevents items from being lost or stolen before they reach the intended beneficiaries.

What Happens During Probate?

The steps in probate include:

Petitioning the court to open probate

The probate proceedings are initiated by the petition for probate or administration. In New York, for small estates where the value of the personal property is below $50,000 and there is no real property, the estate is administered using a simplified process, initiated by the filing of an affidavit with the Surrogate’s Court.

Once the petition for probate is filed, the probate court will determine whether the will being presented is genuine, authentic, and properly executed. If yes, the probate court will admit the will for probate and appoint the executor through the issuance of letters testamentary.

On the other hand, once the petition for administration is filed, the probate court will simply determine whether the petitioner is entitled to be appointed as administrator under the hierarchy provided by state laws. In New York, the order of priority is found in SCPA § 1001.

At this stage, complications may arise. The normal issues we encounter are objections to the probate of the will and two or more relatives claiming to the be the administrator of the estate. This can delay the appointment of the executor or administrator, but an experienced probate attorney will be able to offer alternate remedies to ensure the estate is administered and debts are paid, pending resolution of the issues.

Inventorying assets and debts

Once the executor or administrator is appointed, the estate is administered. This includes gathering the property of the decedent, having it appraised, making an inventory, and paying debts, taxes, and expenses. In New York, creditors have seven (7) months from the time of executor or administrator’s appointment to file their claim. After this seven-month period, the executor or administrator can distribute the remaining proceeds to the beneficiaries or heirs in good faith and will generally not be liable to any creditor who files their claim after the 7-month period.

Closing the estate

Once all estate debts are paid, the executor or administrator submits an informal accounting to the heirs or beneficiaries. If all the heirs or beneficiaries agree to the informal accounting, they can sign receipts and releases in order to receive their share of the estate. If there are objections to the informal accounting, the estate has to be judicially settled with the filing of a formal accounting. A formal accounting approved by the court discharges the executor or administrator from liabilities to the heirs or beneficiaries regarding the management of the estate. The estate is then closed.

Who is Involved in the Probate Process

The key people involved in probate include:

• Personal Representative. The person asked to administer the deceased’s estate. Called executor if the person is named in the will. If there is no will, the court appoints an administrator.
• Beneficiaries or Heirs. People who will receive the deceased’s assets. Called beneficiaries if they are named in the will. If there is no will, state law determines the heirs.
• Probate Judge. Reviews documents and resolves disputes. In New York, they are called Surrogates.
• Creditors. Individuals or institutions owed money by the deceased.
• Probate Attorney. Represents and advises the executor and prepares documents for filing with the court.

How Long Does Probate Take?

The length of probate depends on the size and complexity of the estate. Simple estates may wrap up in months. Larger estates with complex assets can take over a year or more. Delays can happen if there is a will contest or are disputes among beneficiaries.

What are the Costs of Probate?

Probate costs may include:

• Court filing fees
• Executor or administrator fees
• Attorney fees
• Accountant fees for estate tax returns
• Appraisal fees for valuing assets
• Bonding fees for the executor

Costs can be minimized with proper estate planning, such as having a will and arranging assets to avoid probate.

How Can a Probate Attorney Help?

A probate attorney can provide invaluable guidance and services throughout the probate process. Key ways a lawyer can help include:

• Advising the executor on steps needed to probate the estate
• Preparing and filing all required court documents
• Communicating with beneficiaries and creditors
• Advising on estate and inheritance taxes
• Ensuring distribution follows the will’s instructions

Probate can be complex, but a probate attorney makes the process smoother. If you need legal help with probate in New York, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call us at 212-233-1233 or send us an email at [email protected].