The purpose of this guide is to help you understand the Probate Process:

In order to understand probate and the proceedings held in the Surrogate’s Court, it is first essential to understand the following terms and definitions:

  1. Decedent: A deceased individual
  2. Estate: All of the property owned by the decedent
  3. Beneficiaries: The persons (or entities) that are designated under the decedent’s will to benefit from the decedent’s property

What is probate?

There are two types of proceedings that can be commenced in a New York State Surrogate’s Court in order to obtain authority to act as fiduciary of an estate: an administration proceeding and a probate proceeding.

When a person dies without a Last Will and Testament (“Will”), that person is said to have died “intestate.”  Where there is no Will, the individual died without naming a person to handle their affairs or manage their estate.

Where a person dies with a Will, the person is said to have died testate. Their Will must be filed with the Surrogate’s Court and proven to be valid. Probate is the process by which the Court accepts the Will of a person and grants authority to a qualified fiduciary to manage that person’s estate.

If the Court decides that the Will is valid, it will issue “Letters Testamentary” to the nominated Executor, which appoints him as the Executor and authorizes him to collect the decedent’s probate assets, pay the decedent’s taxes and bills, and distribute the decedent’s probate assets to the beneficiaries named in the decedent’s will. Click here for a guide to Probating a Will

What is New York State Probate law?

New York State probate law is set forth in the Surrogate’s Court Procedure Act (“SCPA”) and the Estates Powers and Trust Law (“EPTL”). SCPA defines terms relating to probate (e.g., executor, person interested, estate); sets forth the procedure for commencing and maintaining probate proceedings and other related proceedings, lists the court fees that are to be paid in connection with certain proceedings, and sets forth rules governing the disposition of a decedent’s property.

Similarly,EPTL defines the duties and powers of a fiduciary of an estate.  It also sets forth the requirements of due execution of a Will, of examining witnesses to a Will, of construing Wills, and of seeking Letters to administer an estate. EPTL also sets forth rules on Trusts.

Is probate necessary?

Probate is only necessary where a person has died and left probate assets. (Probate assets are defined in the next section.)  Where a person dies with probate assets in his or her estate, the executor nominated in the decedent’s Will must probate the decedent’s will in order to collect and distribute those probate assets. Thus, when there are are no probate assets, or when there are no assets, then there is no need to probate. For example, if Aunt Betty died and had both a Will and beneficiary designations on all of her accounts, then there is no need to probate because the beneficiary designations override the terms of the Will and will serve as the mechanism by which all assets are distributed.

This rule is strictly enforced both by the courts and by financial institutions.  Generally, when an individual attempts to close out a bank account that was owned only in the decedent’s name, the bank will ask the individual for a copy of the decedent’s death certificate and a certified copy of the Letters Testamentary issued by the Surrogate’s Court.  A bank will refuse to assist the individual in any way until the individual can obtain Letters Testamentary and provide a certified copy to the bank. (If however, there is a beneficiary designation on the bank account, then the bank will not require the Letters Testamentary and will instead just ask for the identification of the beneficiary).

What are Probate assets?

A probate asset is one that does not have a beneficiary designation and does not pass by operation of law. Indeed, probate assets are those assets that are owned solely in the name of the decedent.  If the decedent either owned assets jointly with another individual or named a beneficiary of any of her assets, those assets pass by operation of law and are not the subject of probate proceedings.

For example, if Jane died owning a house in her name alone.  That house is a probate asset, and that house can only be disposed of by a fiduciary that was appointed by the Surrogate’s Court.  However, if Jane owned the house jointly[1] with her husband, the husband can take ownership of without any kind of court intervention. (Sometimes you do not need to probate when the only asset is a house. Click here for more details.)

Examples of probate assets include any real property titled solely in the name of the decedent; individually-owned savings, checking and brokerage accounts (as opposed to jointly owned bank accounts, which are non-probate assets); art; cars; jewelry; cash; and electronic devices.

Non-Probate assets

Examples of non-probate assets include jointly held real property; jointly held savings, checking, and brokerage accounts; bank accounts with a named beneficiary; life insurance policies with a named beneficiary; and assets held in trust.

What is probate without a will?

As mentioned above, where a person dies without a will, the an administration proceeding is commenced in Surrogate’s Court.  Since the person died without naming anyone to act as fiduciary or beneficiaries, the law sets forth who may become the fiduciary of the estate and who is entitled to share in the decedent’s assets.  SCPA § 1001 provides a hierarchy of individuals who may obtain Letters of Administration from the Court where a decedent dies without a will.  EPTL § 4-1.1 provides for the distribution of an intestate decedent’s property.

The process of an administration proceeding is very similar to that of a probate proceeding, except that the court forms look slightly different and there are generally fewer steps involved. Click here for a guide to obtain letters of administration.

What is the New York probate process?

Generally, the Executor nominated in the decedent’s Will should commence a probate proceeding.  The Executor – who is known as the Petitioner for the purpose of the proceeding –  commences the proceeding by preparing a petition that provides the Court with information about the decedent, including the decedent’s date of death, a list of the names and addresses of the decedent’s next of kin[2] – the individuals who would benefit from the decedent’s will had the decedent not executed the will, a list of the names and addresses of the beneficiaries named in the decedent’s will, and a list of the decedent’s probate assets and their values. Click here for sample forms.

The Petitioner must give notice of the probate proceeding to the decedent’s next of kin and the beneficiaries of the decedent’s will.  Click here for a full list of forms.

Decedent’s Next of Kin

The decedent’s next of kin must be given notice of the probate proceeding because they must be afforded the opportunity to object to the will if they so choose.  There are a few ways to afford them this opportunity.  The Petitioner should first try to obtain consents and waivers from the decedent’s next of kin.  By signing a waiver and consent, an individual is consenting to the probate of the will and the Court’s appointment of executor named in the will.  The Petitioner should send blank waivers to the decedent’s next of kin and request their signatures.  This process should be done before the Petitioner files the Petition with the Court.  If the Petitioner receives all of the waivers signed by the next of kin, he can then file the petition, the waivers, and any other supporting documents (affidavit of heirship, death certificate, original will, notice of probate) with the Court.

If the Petitioner does not receive one or more of the waivers that he mailed, then the Petitioner must file the petition with the supporting documents with the Court and supply the court with a citation, which a court clerk will then complete (by providing a return date and signing the citation) and then mail back to the Petitioner.  The citation will list all individuals who must be served the citation.  The Petitioner must then serve the citation on all individuals who are named on the citation.  (A citation may also be needed in certain situations, even where all next of kin has signed waivers.)

The beneficiaries of the decedent’s will who are not also the decedent’s next of kin must be given notice of the proceeding.  These beneficiaries are only entitled to a Notice of Probate, which only provides notice of the probate proceeding.  They are not afforded the opportunity to be heard in court, since they would not have been entitled to share in the estate had the decedent not executed a will.

At the return date, as long as all of the persons interested in the estate have been served prior to the return date and no one objects to probate of the will, the surrogate will state on the record that decree is to be granted, meaning that the will is probated and the Court will issue Letters Testamentary to the nominated executor.  Within the following few weeks, the Court will then sign a decree, in which he orders the probate of the will and appointment of the Executor, and will issue the Letters Testamentary.

Should a person interested in the estate appear and wish to object to the will, the Court will most likely not immediately grant decree.  After the objecting party files objections, the parties will meet in court for conferences, which can either lead to settlement or litigation.

What are the New York State probate forms?

As mentioned above, the Petitioner must file a Petition for Letters Testamentary, the original will, and the death certificate.  Other documents may be needed, such as an Affidavit of Heirship detailing the decedent’s family tree. He must also either provide waivers signed by the decedent’s next of kin or show that he has served the citation on those individuals.  A Notice of Probate must also be served on all beneficiaries who are not also next of kin.  Some courts prefer that the petitioner provide a proposed decree for the court to sign once the will is probated, while other courts provide the proposed decrees themselves.

Who helps with probate?

As the probate process is time-consuming and involves a lot of paperwork, individuals usually hire attorneys to assist them in the probate proceedings.  Please feel free to contact me to discuss your matter and see how I can be of help to you.

Do I need a probate attorney?

A probate attorney is not required by law.  An individual commencing a probate proceeding can commence it pro se (that is, without an attorney).  However, an understanding of the probate laws is necessary in order to complete all the court paperwork, properly give notice to all persons who have an interest in the estate, and distribute all the decedent’s property.  Therefore, it is highly recommended that anyone attempting to probate a will should hire an attorney.

In addition, it is especially recommended that an individual hire a probate attorney where he expects that someone will be contesting probate of the decedent’s will.  Estate litigation matters also require expert knowledge of all estate and probate laws, as well as an understanding of the New York State civil practice rules.

How to find a good probate attorney?

A good probate attorney can be found in a number of ways.  Google, findlaw, avvo, and justia can be used to access a wide variety of New York probate attorneys with varying rates.

Friends or colleagues may also be able to provide recommendations for probate attorneys that they or their friends and family have used in the past.

What are the questions to ask a probate lawyer?

Here are the top 10 questions to ask:

  1. Is Probate and Estate Administration one of your primary areas of focus?
  2. Do you regularly appear in Surrogate’s Court?
  3. Do you regularly appear in the Surrogate’s Court in the county in which this Will is going to be probated?
  4. What documents will I need to provide you?
  5. Do you see anything wrong with the Will?
  6. What are the duties of an executor?
  7. How long will this process take?
  8. How do you bill for your time? (Flat fee or hourly?)
  9. How much will this cost?
  10. Are you personally handling the filing or will your associate, paralegal, or other individual be assisting you?

It is important for the client to provide all the facts of the matter to the probate attorney and ask if the attorney believes that there will be a will contest.  Will contests involve a lot more work than uncontested will proceedings and will be more costly and time-consuming.

What is the timeframe for probate?

Depending on the complexity of the matter, the timeframe may vary.  If there are few persons interested in the estate and no one wishes to the contest the will, the probate process should last no longer than 15 months.  However, if there are many parties, especially parties whose whereabouts are unknown, the process can take longer.  See below.

What are the typical costs and fees associated with probate?

When filing a Petition for Letters Testamentary, the Petitioner must also file a fee, the amount of which varies depending on the size of the estate.  SCPA 2402 provides the fee rates for various estate sizes.  In addition, once the Court issues Letters, it charges six dollars ($6) per Letter.

Attorneys generally charge hourly fees in connection with estates proceedings.  The rates can vary in New York anywhere from $200 dollars an hour to $700 dollars an hour for probate matters.  A typical New York estate can usually incur between $3,000 and $10,000 just to obtain Letters Testamentary.  The matter will be a lot more costly if litigation is involved.

How long can an estate stay in probate?

If the estate is straightforward (all persons with an interest in the estate have been found and no one has contested to the probate of the will), the probate process should only take about three to six months.

However, if the estate is more complicated, it can take years before the decedent’s will is probated.  For example, if a will is contested and the parties refuse to settle the matter, the parties will usually litigate the matter.  Estate litigation can take years to resolve.

What does one do after a will is admitted to probate?

Once the will is admitted to probate, the Executor should collect all of the decedent’s assets, pay the decedent’s taxes (including the decedent’s final income tax and any estate taxes), pay the decedent’s bills and other outstanding expenses, and then distribute the decedent’s assets in accordance with the decedent’s will.

How does one avoid probate?

There are a few ways to avoid probate.  Revocable trusts are often used to avoid probate.  Trust assets are not probate assets and, thus, they avoid probate.  In order for this to work, an individual creating a trust must transfer title of all of his assets to the name of the trust.  In practice, however, this doesn’t always work, as trust creators often neglect to transfer all of their assets before they die.   Pour-over wills are often executed in conjunction with the revocable trust in order to “catch” all property that was not transferred into the trust.

An individual can also create non-probate assets, such as those described above.

[1] A distinction is to be made between property that is held jointly and property that is held as tenants in common.  If an individual owns real property as tenants in common with one or more individuals, that individual is free to distribute his share of the property (either during life or after death), and the share of the property is considered a probate asset if it is still in his possession after his death.  If, however, that individual owns the real property either as joint tenants with rights of survivorship or as joint tenants by the entirety (only spouses can own property as tenants by the entirety), then the real property is not a probate asset, as it then passes to the survivor upon the decedent’s death.

[2] The decedent’s next of kin, also known as the decedent’s distributees, are named in the petition because they have an interest in the decedent’s estate, as they are the individuals who would have been entitled to share in the decedent’s estate if the decedent had died without a will.  The purpose of naming them is to give them notice of the probate proceeding in order to allow them an opportunity to object to the will and give reasons for objecting to the will.

Additional resources provided by the author

For more information, please contact probate and estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@rklawny.com
Or visit her at her new location:
80 Maiden Lane
Suite 304
New York, NY 10038

Visit Regina on Google+

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