Probate refers to the process of determining the validity of a will after a person has died, and the probate process involves the legal aspects of how to distribute the decedent’s assets according to their wishes. The Uniform Probate Code (sometimes referred to as the UPC) is a set of model laws drafted and reviewed by a group of national experts in an attempt to streamline the probate process across state lines. However, only a handful of states have adopted the UPC thus far.

So far, most states, including New York, have not adopted the UPC in its entirety, although most of the states are using portions of the UPC. While New York has not adopted the full UPC, the probate process is still relatively efficient.

What Does the New York Probate Process Look Like?

There are three different kinds of cases that the Surrogate’s Court deals with:

  • Small Estate, also called Voluntary Administration, deals with cases where the decedent had less than $50,000 of personal property (which does not include real estate); 
  • Probate cases are reserved for estates that don’t qualify for Small Estate, and a person has a valid will in place when they die; and 
  • Administration cases involve estates that don’t qualify for Small Estate, and the person died without having a will in place.

Small Estate cases are determined solely by the value of the estate and the absence of real estate owned by the decedent. It does not matter whether the decedent had a will in place if their estate is valued at less than $50,000.

Example: Morgan dies in their home in Brooklyn. They had a will in a safe deposit box that outlined exactly how they wanted their assets to be distributed to family members after death. Morgan also named their brother, Arthur, as executor. Morgan owned no real estate, but the total of the rest of their property (which included furniture, jewelry, and bank accounts) amounted to about $40,000. Even though Morgan has a will in place, Morgan’s assets will be a Small Estate case with the Surrogate’s Court.

The probate process has a little bit more to it, with a fair amount of paperwork. However, if everyone is in agreement, it can be a fairly streamlined process. The executor must present the will to the Surrogate’s Court and provide notice to all of the interested parties that there has been an estate file opened. Once the will is declared valid, then the executor can begin the work of administering the estate, which involves keeping an inventory of all of the decedent’s assets, paying the decedent’s debts and taxes, and distributing assets to the beneficiaries in accordance with the terms of the will.

When the assets have been distributed, the executor must file an accounting with the Surrogate’s Court in order to provide details about how they handled the estate’s assets — what assets existed at the time of the decedent’s death, how the executor spent the estate funds, and how the remaining assets will be spent or distributed.

How Do You Begin the Probate Process in New York?

To begin the probate process, the executor must file paperwork in the Surrogate’s Court in the county where the decedent lived. The paperwork to open a New York estate includes the will, a certified copy of the death certificate, a petition for probate (which is available online through the New York State Unified Court System), and any other supporting documentation.

It is important to file the original will — the Surrogate’s Court will not accept a photocopy. The heirs of the decedent must be named in the probate petition and served with notice of the opening of the estate file. This notice gives the Surrogate’s Court the authority to determine the rights of the people who are involved with the estate. Next of kin (even if they are not named in the will) should also be notified, because they must be given the opportunity to object to the will if they choose.

Example: Morgan dies in their home in Brooklyn. They had a will in a safe deposit box that outlined exactly how they wanted their assets to be distributed to family members after death. Morgan also named their brother, Arthur, as executor. Morgan owned a little bit of real estate in their individual name, and had other assets that totaled $100,000.

In this case, Arthur will need to open an estate file with the Surrogate’s Court in order to begin probate proceedings. To open the file, he will need to take Morgan’s original will, a certified copy of the death certificate to the Surrogate’s Court in Kings County, where they lived, and fill out a probate petition. Arthur will need to list the information for Morgan’s heirs and on the probate petition, so that they can receive official notice of Morgan’s probate proceedings. Since Arthur is Morgan’s only surviving family member, he is the only next of kin.

What Happens After Beneficiaries Receive Notice?

As long as all of the people who have an interest in the estate have been served proper notice and no one objects to probate of the will, then the Surrogate’s Court will grant the decree of probate, meaning that the will is declared valid and the executor will be issued what is called Letters Testamentary, which gives the executor the authority to administer the estate.

Example: Arthur is Morgan’s only surviving next of kin, and Morgan’s only other beneficiary is their friend Faye. Morgan chose to leave jewelry and furniture to Faye under the terms of the will. Faye has received proper notice of Morgan’s estate, and is not going to contest the will. At the hearing in Surrogate’s Court, Morgan’s will is declared valid, and Arthur is issued a Letter Testamentary. He can now proceed with an inventory of Morgan’s property, have their home appraised, and pay Morgan’s debts and taxes while also giving Faye the jewelry and furniture she is entitled to under the will.

Once Arthur has collected the estate assets, opened an estate account, paid the estate taxes and Morgan’s debts, and ensured that Faye received her share of the estate, he will need to file a final accounting with the Surrogate’s Court detailing exactly how the estate’s funds were handled, and how the remaining funds are going to be distributed.

What if There Are Complications in Probate?

Occasionally, there will be complications in probate cases. New York allows spouses to receive an elective share of the assets of the estate, which may make things a little more complicated in the valuation and distribution of the estate. Sometimes, the beneficiaries may dispute provisions in the will or circumstances surrounding the estate.

Common disputes include things like:

  • Contesting Validity of the Will: Sometimes, someone may contest a will, claiming that the decedent was not in their right mind when they signed, or signed it under duress. In such cases, the Surrogate’s Court will need to determine questions about fraud or undue influence.
  • Wrong Assets: There may be instances where a beneficiary receives the wrong asset or the wrong amount.
  • Valuation: There may be disputes over the valuation of a particular asset or item of property.
  • Breach of Fiduciary Duty: The executor has a lot of responsibilities regarding the estate, and sometimes the beneficiaries may not approve of how the executor is performing their duties. There may be a dispute where the beneficiaries petition the court to replace the executor with someone new.

Any time there are complications in a probate matter, or if you aren’t sure whether the estate qualifies for small estate administration or probate, you can benefit from consulting with a qualified New York City probate attorney. The right attorney can give you advice on the best way to proceed and the most efficient way to handle any estate disputes.

Does Every Asset Have to Pass Through Probate in New York?

Not necessarily, but it depends on what is involved in the estate, and what kinds of assets the decedent left behind. Generally speaking, a will needs to be probated if the decedent died with assets valued at $30,000 or more, or if the decedent owned real estate in their individual name.

If the person leaves behind what is called “probate assets,” then these assets will have to pass through probate. Probate assets are assets that do not have beneficiary designations and do not pass automatically by law. For example, a house that is owned in the decedent’s name alone would count as a probate asset, and would need to pass through the probate process.

However, if the decedent owned the house jointly with their spouse, the spouse would be able to take full ownership of the house without the intervention of the Surrogate’s Court. Probate assets are not just limited to real estate. Other types of probate assets can include individually-owned bank accounts, art, cars, jewelry, and electronic devices.

Certain assets may be able to skip the probate process entirely:

  • Joint Tenants With Right of Survivorship: Assets owned jointly with another person as “joint tenants with right of survivorship” will pass directly to the surviving owner, without the intervention of the Surrogate’s Court.
  • POD Accounts: When you open a bank or brokerage account, you may have the option to add a beneficiary. These are called “payable on death” or “transfer on death” accounts, which means that the named beneficiary can assume ownership of the assets in the account upon your death.
  • Life Insurance Proceeds: Life insurance policies that name specific beneficiaries allow the insurance company to transfer the proceeds directly to the named beneficiary without having to go through the probate process.
  • Revocable Living Trusts: Revocable Living Trusts are a popular tool in order to avoid probate. Assets that are held in the trust are technically held in the name of the trust rather than the individual, and therefore can pass to beneficiaries without having to go through the probate process.

Keep in mind that if the estate qualifies for Small Estate Administration, then probate can be avoided altogether. The small estate proceeding in New York is far more simplified and less expensive, and does not require the filing of a petition for probate.

Should I Hire a Wills, Trusts, and Estates Lawyer for Probate in New York?

Estate and probate issues can become very involved and complicated. While a probate attorney is not required, it is in your best interests to consult an experienced New York City wills, trusts, and estates lawyer if you are having to deal with New York probate issues. Having a local lawyer means that you have an expert in how the local Surrogate’s Court works.

The right lawyer can help you navigate all the paperwork involved with probate, represent you in Surrogate’s Court, and provide sound advice on any issues you may run into, including disputes over the will.