The legal process of transferring the property of a deceased person is referred to as probate. In New York, the Surrogate’s Court serves as the probate court and has jurisdiction over probate matters. When a loved one passes away, the last thing you want to think about are the legalities related to settling their estate. However, in order to comply with requirements of New York Estate, Powers, and Trust rules and ensure the legal transfer of assets, tending to legalities is necessary.
During probate the decedent’s will is validated and an executor is formally appointed. The executor is responsible for the management of the decedent’s estate and performs the tasks needed to eventually distribute estate assets. While probate is strongly associated with wills and is traditionally defined as proving a will, even intestate estates must go through an administration process before assets can be legally transferred to others. In the absence of a will, the person responsible for the administration of the estate is often referred to as the personal representative.
To open a probate case, a Petition for Probate must be filed at the Surrogate’s Court in the county in which the decedent lived at the time of their death. In the case of a testate estate, the executor named in the will would typically be the person to file the paperwork. The petition will include an original copy of the will and a certified copy of the death certificate. The Surrogate’s Court judge will review the will to confirm that it was executed with the formalities required by New York law. EPTL § 3-2.1. Once the court is satisfied that the will is valid, the judge will issue an order admitting it to probate and will issue the executor a document called “letters testamentary.” The letters serve as proof that the executor has legal authority to manage the affairs of the estate.
Duties of the Executor or Personal Representative
In settling an estate, the executor’s duties and responsibilities include inventorying the estate, paying estate bills, and distributing assets.
Managing estate assets. One of the first duties of the executor will be to determine the value of the probate estate. This step is important as the executor must make sure that all the property in the estate is accounted for and because the executor must understand how much is available to pay creditors and distribute to beneficiaries. The executor must submit an inventory of estate assets to the court. N.Y. Comp. Codes R. & Regs. tit. 22 § 207.20
Paying estate debt and expenses. Before distributing assets to beneficiaries, the executor must use estate assets to pay outstanding debts, expenses, and taxes. Creditors must file claims within 7 months of when the executor was appointed. The executor must pay claims that are valid and that were filed within the 7-month period.
Distributing assets. One of the final responsibilities of the executor is to distribute the assets to beneficiaries according to the terms of the will. If there was no will, New York’s law of intestate succession applies. EPTL § 4-1.1.
The rules of intestate succession are rigid. A decedent’s surviving spouse and children are considered the next of kin and legal heirs. In the absence of a spouse or children, only specific family members such as parents, siblings, aunts, uncles, nieces, and nephews, etc. would be eligible to inherit based on degree of consanguinity. New York law does not make allowances of friends, employees, or institutions to share in an intestate decedent’s estate. Therefore, it is critical to execute a will.
The estate administration process is not always problem-free. When disagreements develop among parties involved, it can escalate to full-blown litigation. For example, someone may object to the will and initiate a will contest. There are several bases for a will contest including undue influence, lack of testamentary capacity, duress, fraud, and improper execution.
Probate litigation can also be based on disagreements over how to interpret terms in a will, disputes over how the executor or personal representative has managed the estate, or disagreements over ownership of assets in the estate. Regardless of the reason for the dispute, probate litigation has the potential of delaying probate and being costly to the estate.
Settlement of Small Estates
If an estate has assets with a value of $30,000 or less, they may be able to take advantage of a simplified administration process. N.Y. Surr. Ct. Proc. Act § 1301. Under this process, a person wishing to serve as voluntary administrator would file an affidavit requesting summary administration. If approved, the administrator must then pay estate expenses and debt and distribute any remaining assets to the beneficiaries named in the will. Finally, the administrator would file with the Surrogate’s Court a statement detailing assets collected and distributions made. N.Y. Surr. Ct. Proc. Act §§ 1304-1307