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Testate versus Intestate

If the individual who died (i.e., the "decedent") had a valid Will, the decedent is said to die testate.

The executor named in the decedent’s Will must offer the Will for probate in the Surrogate’s Court in the county in which the Decedent was domiciled at the time of his death. All of the decedent’s distributees (in effect their "next of kin"), irrespective of whether or not they are named in the Will as beneficiaries of the decedent’s estate, are entitled to notice that the decedent’s Will is being offered for probate. After jurisdiction has been obtained over all of the interested parties and the executor nominated in the Will has been granted Letters Testamentary, the executor is charged with collecting and marshalling the decedent’s estate in accordance with the terms of the Decedent’s Will.

If a decedent died without leaving a valid Will, the decedent is said to have died intestate, and the decedent’s estate passes through intestacy to the decedent’s distributees.

The distributees of a decedent’s estate are set by statute. See: EPTL § 4-1.1. Eligibility to serve as the administrator of a decedent’s intestate estate is set by SCPA § § 1001-1002.

Important Terms

Intestate: When a person dies without a will.

Testate: When a person dies with a will.

Administration Proceeding: A proceeding to appoint a legal representative, known as an

administrator, to administer the estate of a person who dies without a Will.

Probate Proceeding: A surrogate court proceeding to administer the property of a person who dies with a will. The legal representative of the estate here is called the Executor. See also: How is a Will Probated?

Probate Assets: Assets held in the decedent’s name alone that do not pass by operation of law and that which the Executor administers in accordance with the decedent’s Will. See also: The Probate Estate.

Operation of Law: Property that passes automatically because of the way title is held in the

property and is not affected by intestacy rules or by a Will. See also: How Property is Transferred at Death.

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