How to Probate a Will

Probate is a complex process that involves appointing an estate representative (e.g. executor), gathering the property of the decedent, and distributing the property to the proper parties. Serving as executor of an estate is a big responsibility and requires a significant amount of time and effort. Probating a will can be challenging, however, when taken step by step, the process becomes more manageable.

There are three major phases of probate. The first phase consists of applying to the Surrogate’s Court to admit the will to probate and to appoint the executor. Phase two consists of the executor collecting the decedent’s property and determining the debts. The final phase consists of the executor accounting for all estate activity: what was collected, what was paid out, and what is left to distribute to the beneficiaries.

Step One: Getting Started – Petitioning for Probate

Step One begins with the filing of a petition and ends with the Surrogate issuing a decree. The decree admits the will to probate (validates the will) and appoints the person nominated as executor to represent the estate.

Petition & Supporting Documents

  • A Petition for Probate must be filed in the county that the deceased resided at the date of death. The petition must be filed with the original last will and testament, death certificate, and court filing fee. Additional supporting documents and affidavits may be required depending on the circumstances.

Notice of Probate Proceeding

  • All necessary parties must be given notice of the probate proceeding. The Surrogate’s Court must obtain jurisdiction over certain interested persons (through notice) in order for any decree to be binding upon that person. The individuals whom must be served with notice depends on the circumstances but nearly always includes the heirs at law—the individuals who would inherit even if there were no will. The required form of notice varies depending on the person’s relationship to the decedent. The means by which the notice is served on the person depends on the person’s residence.

Proof of Validity of Last Will & Testament

  • The main point of the probate proceeding is to prove the validity of the will—that it is, in fact, the decedent’s will, that it was properly executed, and that the decedent had the capacity to execute a will. These elements must be proven by the person putting forth the will for probate—the petitioner. Proving the will can be accomplished by examining the witnesses to the will under oath. However, this examination is often dispensed with where the testator (person creating the will) and witnesses executed a Self-Proving Affidavit. This document contains a sworn statement attesting to the will’s validity. If no self-proving affidavit exists, the petitioner may seek to obtain a similar affidavit from the witnesses, after the date of death, which may also allow the examination to be dispensed with.

Executor’s Bond

  • The executor may be requested to post a bond to ensure that the job is done properly. Most wills contain a clause allowing the executor to serve without a bond but occasionally one will be required. The bond serves as insurance to cover any losses caused by the executor.

Decree Granting Probate & Letters Testamentary

  • Once the Surrogate is satisfied that the will is valid, that proper notice has been given to the necessary parties, and that the nominated executor qualifies for the position, then the Court will issue a decree granting probate and authorizing the issuance of Letters Testamentary to the executor. Letters Testamentary is a document indicating that the executor may act on behalf of the estate.

Step Two: Administering the Estate

Once the will is admitted to probate, the executor must begin administering the estate. This basically means collecting assets and determining debts. The executor may find this job most challenging of all, since it is the responsibility of the executor to ensure that assets are protected, creditors are paid, and the net estate is distributed to the beneficiaries in a manner that is consistent with the decedent’s will. A few responsibilities of the executor are:

1. Determining Assets

  • In some circumstances, the executor has intimate knowledge of the decedent’s assets. In other situations, little is known about the existence of assets. There are several methods available for ascertaining estate assets.

2. Inventory of Assets

  • Executors must make a list of the decedent’s assets. An inventory of assets must be filed with the court within the later of six months of the date of appointment, or the date on which an estate tax return is due. Real estate, and occasionally other valuable items, should be appraised.

3. Employer Identification Number (EIN)

  • The executor should obtain an employer identification number from the IRS. This sounds like a misnomer because there is no employer involved in an estate but the EIN is simply to identify the estate like a social security number.

4. Estate Account

  • The executor should open an estate account so estate funds can be segregated from the executor’s personal funds.

5. Estate Related Taxes

  • The executor is responsible for filing various federal and state tax returns which can include: the decedent’s final income tax return, estate tax return, fiduciary income tax return.

6. Determine Debts

  • Before you transfer the decedent’s assets to the beneficiaries, you must first satisfy creditors of the estate. Examples of creditors include mortgage lenders and credit card companies.
  • Debts usually should not be paid until it is determined that the estate has enough funds to cover administration costs (court fees, attorney fees, administrator commissions, funeral etc.) and funeral expenses. Administration expenses and funeral expenses have priority over all debts.

7. Record Keeping

  • You must keep diligent records of every transaction conducted on behalf of the estate, including all expenditures. Not only are you required to do this but sometimes questions or objections arise from heirs, creditors, or the Court. Keeping proper records ensures your ability to account for your actions.

These are just a few of the many responsibilities of an executor. Depending on the characteristics of each estate, the executor can have many other duties. Therefore, it is important to figure out exactly what needs to be accomplished and the best method for getting there.

Step Three: Accounting and Wrapping Up the Estate

The final phase of probate is accounting. Often, executors are relieved to reach this stage of the process because it means they’re in the home stretch and the remaining assets are ready to go to the beneficiaries. Once all assets are collected, all debts are determined, and any disputes have been resolved, the executor is ready to account.

An accounting is simply the executor’s way of memorializing what has been collected, what has been paid, and how the executor proposes the remainder be distributed. The executor needs the beneficiaries to approve the account and she needs the beneficiaries and creditors to indicate they’ve received what they are entitled to.

Most estates are settled informally without a court proceeding. The executor’s attorney would prepare the account and have each of the beneficiaries approve it. The beneficiaries are asked to sign a Receipt & Release, indicating that they approve the account, have received what they are entitled to, and release the executor from liability.

For various reasons (e.g. an interested party cannot be located or refuses to approve the executor’s account), some estate are settled through a judicial accounting proceeding. This process starts with the executor filing a petition asking the Court to approve her account. All beneficiaries, creditors, and other interested parties must be provided with notice of the proceeding so they have the opportunity to object. If a dispute arises, the Surrogate can hold a hearing to resolve it. Ultimately, the Surrogate issues an accounting decree, giving the account its seal of approval and releases the executor from liability.

When to Contact a New York Probate Lawyer

Some executors hire a probate lawyer from the outset. Others wait until problems arise. If you are going to serve as an executor, it is important to have knowledgeable legal support at every stage. Mistakes can be costly and executors are personally responsible for damage caused by their negligence. The decision is ultimately up to the executor but it is prudent to have adequate guidance.

An experienced probate attorney can help you navigate the challenges presented by probate and can give you the information and resources needed to administer an estate as efficiently and effectively.

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