What Happens When a New York State Resident Dies?
When a New York resident dies their Last Will and Testament must be admitted to probate. The person named in the Will as the Executor has the legal authority to act on behalf of the estate after the Will is admitted to probate.
Probate is the legal procedure that takes place in the Surrogate's Court. The Court determines that the deceased person's Last Will and Testament is authentic, properly signed and assures its administration is consistent with its instructions.
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The New York Family Exemption
Probate is not required for all estates. Under New York Law, the surviving spouse and dependent children are entitled to receive certain funds before any estate proceeding is required. For example, under the "family exemption" a spouse is entitled to receive cash of $25,000. Under Also, a spouse is entitled to transfer one motor vehicle with a value of $25,000 or less without resort to probate. The death certificate and title documents will be required by the Department of Motor Vehicles in order to complete the transfer.
New York Small Estate Administration
If the deceased person's assets are less than $30,000 (after the Family Exemption amounts) and the will maker owned no real estate, the estate may be administered using a small estate proceeding. The small estate proceeding is a simplified process which does not require the filing of a petition for probate.
Insufficient Assets to Pay Debts
If the deceased person's debts exceed the value of his or her assets it may not be desirable to proceed with probate. However, there are reasons and circumstances under which it might be advisable to proceed with probate, even if the total debt exceeds the total value of the assets. In this case it is best to get the advice of an experienced New York estate lawyer before proceeding one way or the other.
What if a person dies without a Last Will and Testament?
If a person dies a resident of the State of New York without a Will, then the "intestate" laws of New York control the process. The person responsible for handling the estate of someone who dies without a Will in New York is called the "Administrator." The intestate laws of the State of New York identify who may act as Administrator and who is entitled to receive the assets of the estate.