The New York State Probate Process

If you’ve recently lost a loved one, or are helping someone who has, we know this is a challenging time. Robert Adler, Attorney at Law, can help you with New York Probate & Estate Administration and the inheritance process.

In New York, if the deceased individual died without a Will, a New York Probate Lawyer will file an administration proceeding in the New York Surrogate’s Court.

When someone dies in New York with a Will, the Will must be filed in the New York Surrogate’s Court and admitted for probate.

If the the person who died (the “decedent”) owned less than $30,000 of personal property (even if they had a will), then a so-called voluntary administration proceeding is filed.

Probate is the process of proving that the Will is valid and that it is  “in fact” the Last Will and Testament of the person who died. When the Surrogate Court Judge determines that the will is valid, the Executor named in the Will is appointed to distribute the estate and carry out the wishes of the decedent. The Surrogate’s Court oversees this process.

The Executor files the original Will and a certified copy of the death certificate with the probate petition along with other supporting documentation in the Surrogate’s Court in the county where the Decedent had their primary residence.
After a person dies, their estate must be distributed to the beneficiaries. Depending on what kind of estate proceeding was filed, the responsible person is referred to as either an Executor or Administrator.

In a probate proceeding, the responsible person is called the Executor. The Executor is named in the Will.

In an administration proceeding, the responsible person is called the Administrator. (In a “small estate” voluntary administration, the responsible person is called the Voluntary Administrator.)

Executors, Administrators, and Voluntary Administrators are all fiduciaries. That means they owe a fiduciary duty to the estate. A fiduciary duty is the highest obligation of good faith that the law recognizes. A fiduciary duty is a legal duty to act solely in another party’s interests. Thus, fiduciaries have a legal duty to act faithfully towards the estate and not put their interests ahead of that duty.

The New York Surrogate’s Court may require that a fiduciary be bonded before they are appointed. A bond is issued by a surety company and is in effect an insurance policy that provides security of the estate’s assets. If the fiduciary does not take proper care of estate assets, then the bonding company will be required to reimburse the estate for the loss. The bonding company will then try to recover the lost assets from the fiduciary.

Executors, Administrators and Voluntary Administrators are responsible for protecting all estate property until debts and taxes are paid. In general, Executors, Administrators and Voluntary Administrators have three responsibilities:

  1. Collect, inventory, and appraise all the assets of the estate.
  2. Pay the bills, taxes, estate expenses, and creditors of the decedent.
  3. Transfer property to the beneficiaries according to the Will or, if there is no Will, then according to the New York State laws of intestacy.

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