Probate & Administration
Probate is the process by which the courts determine that a will is valid and is approved for execution. In New York State, it is the Surrogate Court that decides on the validity of a will. The Executor named in the will initiates and oversees the probate process and may wish to hire an attorney to act on his behalf, but can also manage the process himself if he is confident of doing so successfully.
The following are key steps that must taken to get a will through probate:
- Executor files the will (original) and a certified copy of the decedent's death certificate with the probate petition and other supporting documents. The Surrogate Court to file with the papers with is that which is in the county where the decedent had his primary residence.
- The Executor must include the heir ("distributees") in the probate petition. Additionally, distributees must be served a "citation" which is a formal notice that gives the Surrogate's Court jurisdiction to determine the rights of each beneficiary. A citation is also a means of informing heirs as to who is the Executor. They can either sign a waiver and consent to the appointment of the Executor, or go to court to challenge the appointment.
- A filing fee must be paid, and the amount depends on the size of the estate.
The probate process is - as acknowledged by the New York Court system - not a straightforward one. The paperwork can be complex, so having an attorney to guide you will ensure a faster, more efficient and satisfactory outcome. If time is of the essence (e.g. the decedent's family needs cash flow to live on or pay the mortgage to their shared home etc.), you want to ensure that you get all the paperwork right the first time around.
Administration is the process of distributing a decedent's estate when that person has passed on without a will. The Administrator's role is akin to that of the Executor (where a will exists). He or she is usually a close relative of the decedent.
Note: in New York, neither probate nor administration proceedings are required by law if the decedent's estate is less than $30,000 (personal property only, and excluding real estate). In such cases, a voluntary administration proceeding should be filed by the Voluntary Administrator with the Surrogate Court regardless of whether a will exists. Distribution of property will be according to the will if there is one, and if not, then according to law.