Probate is a legal process in which the estate of a deceased individual, called a “decedent,” is identified, collected, and distributed to the heirs of the decedent under the supervision of a New York probate court.
In a legal consultation in New York with a New York lawyer, the lawyer would be able to explain the process in detail.
Probate is not necessary in the case of every decedent. It should be part of an individual’s estate planning to determine whether or not probate would be required for their estate. This is something an individual would want to discuss with their trust and estate lawyer.
In the course of the probate process, the following is accomplished:
- The legal validity of a will, if the decedent left a will, is established.
- All of the assets of the decedent are identified, located, and inventoried. A written inventory and appraisal are prepared for the court.
- Any taxes owed by the decedent or their estate are paid.
- All debts that are owed by the decedent or their estate are paid.
- The assets are distributed to the beneficiaries named in the will if there is a valid will.
- The assets are distributed to the heirs of the decedent per the laws of intestacy in New York if there is no valid will.
If a decedent does not leave a valid will, they are said to be “intestate.” In these cases, the laws of intestacy in New York determine who inherits the assets from the decedent’s estate.
In New York a special proceeding called an “administration proceeding” should be filed for an intestate decedent.
If the decedent owned less than $50,000 worth of personal property, whether they had a will or not, then a small estate, also called a “voluntary administration proceeding,” can be filed instead.
The probate court appoints a person who is called the “administrator for the estate.” This person is often an attorney. The administrator has the same authority as an executor and performs the same tasks with the goal of settling a smaller estate.
Initiating probate requires someone, usually a relative of the decedent, to go to probate court, file the decedent’s original will and a certified copy of the death certificate. A death certificate shows the date and place of an individual’s death.
The person who initiates probate then asks the judge to appoint an executor or an administrator for the estate. The executor or administrator is the individual who represents the estate in the probate process and ensures that everything is done according to the law. The person who initiates probate would also file a form called a “probate petition” and other supporting documents as required by law.
They would file all of these documents in the New York Surrogate’s Court in the county in which the decedent had their primary residence.
When the court appoints an executor, the executor would then be responsible for the following tasks:
- Making sure that beneficiaries named in the will are notified
- Provide notice to creditors so they can present their claims for payment to the estate
- Locate, identify, and inventory all of the estate’s assets
- Pay the costs of the probate and the decedent’s legitimate debts from the estate
- Determine if any taxes are owed, complete tax returns, and pay taxes owed
- Distribute the assets to the beneficiaries named in the will or the heirs determined by the laws of intestacy.
At each stage of the process, documents must be prepared, filed with the court and distributed to interested parties who are entitled to receive notice of certain events.
Additional Considerations in the Process
In New York, the family members of a decedent who are entitled to receive a share of the decedent’s property are referred to as “distributees.” A probate petition should identify a decedent’s distributees. Distributees must be served with a notice, called a “citation” in New York. The Surrogate’s Court has jurisdiction over the distributees when they have been served with a citation, meaning the Court has the authority to decide their rights.
When a distributee receives a citation, they have been notified that the executor has filed for the legal right to manage the estate of the decedent. The distributee may consent to the appointment of the executor. Or, they might disagree with it in court. Individuals and people whom the will names as the beneficiaries entitled to inherit part of the assets of the estate must be notified of the probate proceeding also.
Of course, conflicts may arise in the course of probate. An individual or entity may claim that the will is not valid. Creditors may make claims for payment that there is reason to contest. There may be questions about the amount of taxes owed.
In situations in which conflicts arise, the personal representative must represent the interests of the estate and may have to hire a lawyer or lawyers to help resolve the issues.
