Blog

By Jill K. Sanders, Esq.

As a result of the COVID-19 (coronavirus) pandemic, many people are reeling from the unexpected loss of friends and family. Whether your loved one died with or without a Will, you should know how the probate and administration processes work in New York.

 

The Basics of Probate and Administration

In distributing someone’s assets after they die, there are two types of proceedings which can be commenced in Surrogate’s Court. One is a probate proceeding, and the other is an administration proceeding.

The person who has passed away is the decedent. When a decedent dies without a last Will and Testament, that person has died intestate. This means the person died without naming an executor to manage his or her estate. In this case, an administration proceeding may be commenced in Surrogates Court. The law sets forth a hierarchy of relatives who may obtain Letters of Administration from the Court to settle the estate.

When a person dies with a Will, that person has died testate. Thus, a probate proceeding may be commenced in Surrogates Court. Their Will must be filed with the Surrogate’s Court, and it must be shown to be valid. If the Will is deemed valid, the Court will issue letters testamentary to the executor.

Whether it’s the executor or the administrator, that person will pay the decedent’s bills and taxes, and will further collect and distribute the decedent’s assets. Where there is no Will, the law specifies who may be the beneficiary of these assets. Otherwise, the executor will follow the Will or if there is a successful challenge to the Will, the Court will direct the distribution of assets.

 

What Is a Probate Asset?

Probating a Will or estate is only necessary where the decedent left probate assets. But what is a probate asset?

Probate assets include anything that does not pass by operation of law to another individual. This means that the decedent owned the asset by him or herself, and not jointly with another individual. It also means the decedent had not already designated a beneficiary for that asset. Examples of assets which are part of the probate estate include, but are not limited to:

• Solely-owned real property
• Individually-owned bank and investment accounts
• Cash
• Cars
• Jewelry
• Art

Examples of non-probate assets include assets which have either a joint owner or a beneficiary. This includes, but is not limited to:

• Jointly-held real property
• Jointly-held bank and investment accounts
• Bank accounts with a named beneficiary
• Life insurance policies with a named beneficiary
• Assets held in trust

Note that if the Decedent had less than $50,000 of assets, then a voluntary administration proceeding can be filed for an administration or probate. This can occur whether the decedent had or did not have a Will.

 

What Happens in a Probate Proceeding?

The executor named in the decedent’s Will should commence a probate proceeding in Surrogate’s Court. He or she must give notice to the decedent’s relatives and the beneficiaries named in the Will. Why give notice? This is so the decedent’s next of kin are afforded the opportunity to object to the Will. However, they can sign a waiver and consent, which means they consent to the probate of the Will and appointment of the executor named in the Will.

On the return date for the probate petition, the Surrogate will make certain findings. If all persons interested in the estate have been properly served and have not objected, the Surrogate will decree the Will probated and issue letters testamentary to the executor. Thereafter, distribution of assets will commence.

The timeframe from the decedent’s death to issuing the letters testamentary varies. It depends on the complexity of the estate, the number of assets, and the number of interested parties. A fairly simple probate matter can take between three and six months, and in general it should last no longer than 12 to 18 months. However, in the most complex of estate matters, the process can take much longer. This is particularly so where next of kin or beneficiaries are difficult to locate, or where parties are contesting the Will.

 

Hiring an Attorney

An individual is not required to hire a probate attorney. However, the process is time consuming, and an understanding of the laws is necessary to complete the process. Therefore, it is highly recommended that anyone attempting to probate a Will should hire an attorney. This is particularly so when there may be a contest to the Will.

If you are in need of an experienced probate attorney, contact our law office today. Al Cornachio and the attorneys at Pappalardo & Pappalardo, LLP will help you in the difficult process of settling the estate of your loved one.

 

References:

• New York’s Consolidated Laws: Surrogate’s Court Procedure Act. Available at: https://www.nysenate.gov/legislation/laws/SCP (last accessed April 30, 2020).
• New York’s Consolidated Laws: Estates Powers and Trust. Available at: https://www.nysenate.gov/legislation/laws/EPT (last accessed April 30, 2020).
• New York Courts, “When Someone Dies.” Available at: http://nycourts.gov/courthelp//WhenSomeoneDies/index.shtml (last accessed April 30, 2020).