Probate is the New York Surrogate’s Court process for proving that a will is the valid last will of the person who died and for appointing the person who will carry it out. The judge in that court is called the Surrogate.
After a will has been admitted to probate, any person entitled to letters under the will who is eligible, appears, and qualifies is entitled to letters testamentary. Those letters give the executor named in the will authority to collect assets, deal with debts, and distribute property according to the will.
How a probate proceeding starts
The proceeding is usually filed in the Surrogate’s Court of the county where the person lived. The executor, or another person entitled to ask the court to admit the will, files the original will, a certified death certificate, a probate petition, and other supporting papers.
The people who would have inherited if there had been no will — the distributees — generally must be listed and given official notice. They may consent to the appointment or appear and object. Beneficiaries named in the will are also notified. If someone objects, or if a witness to the will has to be examined, the matter can take longer.
When there is no will
If there is no will, the court does not “probate” a document. The proceeding is called administration. The court may then issue letters of administration to a person with priority under the law, and the property in the estate is divided under New York’s intestacy statute, not under a will.
For some smaller estates, a simpler voluntary-administration, or “small estate,” filing may be available. Under New York law, that path is generally limited to personal property with a gross value of $50,000 or less, not counting certain property the law sets aside for the family. The simplified procedure does not transfer an interest in New York real property. Owning a house or other real property in New York does not, by itself, prevent use of the procedure for the personal property, but transferring the real property typically requires a full probate or administration proceeding.
Why people try to avoid probate
People try to avoid probate for a few practical reasons. The court file is a public record. The process involves paperwork, notice, and waiting for the court to act, and it can be slower or more expensive when a family disagrees or the papers are incomplete. Many uncontested estates still move in a straightforward way. Probate is a court proceeding, not a private handover of keys.
Avoiding probate can be a sensible goal for some assets, but it is not the only goal of a plan, and it is not automatic.
Not every asset goes through probate
Property held in a funded trust, a jointly owned account that passes to the survivor, or an account or insurance policy with a valid beneficiary designation often transfers without being part of the probate inventory. A will does not, by itself, pull those assets into the will’s plan, and a trust does not, by itself, control assets that were never transferred to it. That is why the way property is titled is as important as the documents in the drawer.
A will is still useful, including to name an executor and a guardian. A trust has to be signed correctly and then funded if it is going to keep assets out of the probate proceeding.
Timing after letters are issued
There is also a timing issue after letters are issued. New York has rules about when creditors should present claims against an estate and about when an executor or administrator who later distributes assets in good faith is protected. Those rules are one reason an estate is often not wrapped up in a few weeks. They are not a simple cutoff that erases every late claim, and they should not be treated as one.
Jordan M. Endler, P.C. in Islandia, New York, helps Long Island clients with probate, estate administration, and the planning that happens beforehand. Call (631) 896-2211. He takes calls in the evenings and on weekends.
This article is general information about New York law, not legal advice, and does not create an attorney-client relationship.
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