When someone passes away, it is the probate court that is responsible for ensuring that their affairs are settled in an orderly fashion. In New York, probate proceedings are held in the Surrogate’s Court.
If the deceased has left a will, the proceedings to settle his or her affairs are slightly different depending on where they lived. Arizona probate laws, for example, are not the same as those in New York. In this post, we will examine the laws as they currently stand for New York.
When there is a will, the proceeding is referred to as probate administration. When there is no will, it is referred to as estate administration. In both cases, the goal is to ensure that the property of the deceased goes to the appropriate people.
When there is a will, the decedent’s property goes to the beneficiaries that they have named in the will. If there is no will, it is distributed to the next of kin.
The probate also ensures that the decedent’s debts are paid.
Process of Estate Administration
Petition to Open Estate
The probate process starts when someone, generally the executor named in the will, files a Petition for Probate along with the will and the death certificate with the Surrogate’s Court in the county of the decedent’s primary residence.
The judge reviews the will and if all is well, admits it to probate. At this stage, interested parties can challenge the validity of the will by filing an objection with the Surrogate’s Court.
The Petition for Probate also includes a request that the judge issues Letters Testamentary, formally appointing the executor who was named in the will.
If there is no will, someone has to petition the court to start the estate administration process. The court will issue Letters Testamentary to them and they are referred to as the estate administrator rather than the executor.
Assets
Once the Letters have been issued, the administrator/executor has to gather information about the decedent’s assets and determine the value of the estate. This is a very critical step in the probate process because there have to be sufficient assets to pay estate debts and distribute assets.
Assets that are considered part of the probate estate include property that the decedent owned individually. Property that is not generally part of the probate estate includes anything co-owned with others and property held in trust.
Pay Estate Debts
A priority for the Surrogate’s Court is ensuring that the debts of a decedent are paid in full before any of the assets are distributed to heirs or beneficiaries. There is a short period of time in which creditors have to file a claim.
All valid claims have to be paid by the administrator out of the estate assets. In addition, the administrator is not personally liable for claims filed after the deadline.
Accrued expenses relating to managing the estate, such as insurance expenses, attorney fees, and other expenses also have to be paid out of the assets of the estate.
Distribute Estate Property
Once the deadline for the creditors claims has passed, and all valid claims have been paid, the Surrogate’s Court gives the administrator permission to distribute assets.
If there is a will, they will distribute the assets based on the terms of the will. If there is not a will, the assets are distributed according to the rules of intestate succession.
Intestate Succession
If there is no will, a person’s estate will be distributed according to the rules of intestate succession. In New York, the intestate succession rules are very detailed.
The surviving spouse inherits the entire probate estate if there are no children or other descendants. If there are descendants, the surviving spouse gets the first $50,000 and the balance is divided one-half to the spouse and one-half to the decedent’s descendants.
If there is no surviving spouse but there are descendants, the entire probate estate in an intestacy passes to the deceased person’s descendants. These children, grandchildren, or even great grandchildren will take by representation.
If there are no descendants and no spouse, the probate estate instead passes to the decedent’s parents, equally, or all goes to the surviving parent. If no parents survive, the estate passes to the deceased person’s siblings (or children of a deceased sibling). Half siblings count the same as whole siblings.
When there is no surviving spouse, parent, sibling, or descendants of siblings, the probate estate generally passes one-half to the deceased person’s mother’s relatives, and one-half to the father’s relatives, according to a specified order.
When Probate is Not Necessary
There are instances when probate is not necessary in New York. For example:
- If the estate is small. In this case, a small estate or voluntary administration proceeding can be filed as an alternative to probate. A small estate is personal property of less than $30,000 either with or without a will.
- There are no probate assets. If a person’s estate consists solely of non-probate assets, there is no need for the probate process.
- The estate plan was created to avoid probate. Individuals with a moderate to high net worth often take steps to prepare an estate plan that avoids probate as a way to simplify the distribution of assets to their heirs.
