How is a Will Probated?

The Surrogate’s Court

The Surrogate’s Court is the court in New York State where all legal issues related to Wills and Trusts are determined. The Surrogate’s Court handles the probate of Wills, the appointment of Executors and Administrators, and hears all disputes regarding the validity of a Will or the administration of a trust or estate.

How is a Will Probated?

Probating a Will is the first step in the estate administration process. The Executor must locate the original Will to file with the Surrogate’s Court. If the Will is in a safe deposit box, the Executor will have to obtain an order from the Court to open the box and retrieve the Will. That’s why the original Will should not be kept in a safe deposit box as such an arrangement will cause delay.

New York requires that all beneficiaries and fiduciaries named in a Will plus all of the decedent’s distributees (those who would inherit decedent’s estate under state law if there was no Will) be notified that the Will is being submitted to probate.

Any person who would be adversely affected by the probate of decedent’s Will is given an opportunity to appear in Court and object. Usually, no one has any objection to the Will, and as long as the Surrogate (i.e., the Judge) believes that the will-maker’s last Will is valid, the Will will be admitted to probate and the person(s) named will be appointed Executor(s). In some cases the witnesses to the Will may be required to testify that the Will is valid.

Generally, an Executor is not required to file a bond with the Court unless the Will requires it. The bond secures the assets of the estate and protects the beneficiaries from the possibility that the Executor might steal the estate’s assets. Unless the Will specifically provides otherwise, an Executor will be required to file a bond if he or she is not a resident of New York State.

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