Probate and Estate Administration are, in essence, two similar court proceedings in which a representative is appointed to manage a decedent’s estate with the ultimate goal of transferring the decedent’s assets to the beneficiaries of the estate. In New York, if a person dies with a Last Will & Testament, the court proceeding used to validate the will and appoint an executor is referred to as Probate. The word probate is derived from the Latin verb “probo” meaning “to prove”. Therefore, the phrase, “to probate a will” essentially means to prove the Last Will & Testament or to have the will admitted to probate. By contrast, if a person dies with no Last Will and Testament, the court proceeding is referred to as Administration. This web page focuses on Probate proceedings.
What is Probate Court?
The venue for probating a Last Will & Testament is New York State Surrogate’s Court, which is informally known as probate court. The information included on this web page focuses on estate law in New York. If you are seeking information on the legal process for a decedent’s estate in another state, you should be certain to consult with an attorney admitted to the bar in that particular state.
What is the Probate Process in New York?
So what do we mean when we say “probate the will” or “admit the will to probate”? These phrases refer to the process whereby a petitioner asks the New York State Surrogate’s Court to declare that a certain document is the Last Will & Testament of the person who died. While the probate process is largely the same throughout the State of New York, this article focuses on probate proceedings in Manhattan (New York County), Brooklyn (Kings County), Bronx County, Queens County, and Staten Island (Richmond County). The petitioner is required to file a probate petition with the Surrogate’s Court, which includes detailed information regarding the decedent, the petitioner, the executor named in the will, the beneficiaries named in the will, and the distributees (or heirs at law – the individuals who would inherit from the decedent if no will existed). Usually, when a person dies leaving a will, it is the nominated executor who hires an estate attorney to petition the Surrogate on the executor’s behalf. If the decedent properly planned his or her estate, the named executor would likely: 1) have been informed in advance of his or her appointment as executor; 2) the location of the original will; and 3) would likely become aware of the decedent’s death in a timely manner. Jurisdiction must be obtained over the distributees so as to provide them with proper notice of the probate proceeding so each distributee has the opportunity to object to probate of the will. Valid objections to probate include:
While most wills are probated without objections, jurisdiction is always required over certain individuals such as the distributees so as to provide them with the opportunity to object. Jurisdiction may be obtained by having each individual sign a Waiver & Consent which “waives” the need for the person to be served with a probate citation to appear in court and “consents” to the admission of the will to probate and appointment of the nominated executor. If a party refuses to sign a Waiver & Consent, which happens from time to time (if an heir is to receive nothing under the will, this often causes non-compliance), then the petitioner must serve the party with a citation issued by the Surrogate’s Court. A probate citation demands that the person receiving it appear in court on a certain date and voice any objections to admitting the will to probate. If the person does not object on such date, then the right to object is deemed waived.
Once the executor (or the executor’s estate lawyer) has filed the petition along with the death certificate, original will, a copy of the will, appropriate waivers, proofs of service of citations, additional supporting documents as needed, and pays the filing fee, the Surrogate will issue a decree granting Letters Testamentary, the executor’s official written appointment.
Potential Pitfalls in a Probate Proceeding in New York
While the above procedure is somewhat typical of a probate proceeding, it is not always this straight forward. Various issues can arise to complicate the proceeding. Objections to probate are the most onerous obstacles because the filing of objections is the formal start of a will contest. However, there are complications that can occur even in an uncontested probate proceeding such as:
Additional issues may arise as well; however, an experienced estate attorney can often overcome many of these obstacles.
Conclusion of the Probate Proceeding
The Probate Proceeding is concluded when Letters Testamentary issue to the executor, but this end is only the beginning of the overall process. Once Letters issue to the executor, the executor then has the authority to collect and liquidate estate assets, determine and pay debts, file required tax returns, handle other estate issues, and ultimately make distributions to the beneficiaries. The role of the estate lawyer is to guide the executor through this process, ensure that court proceedings are conducted properly, appropriately administer the estate assets, and prevent mistakes and liability.
Executor’s Legal Obligations
The executor has a fiduciary responsibility to act prudently, in good faith, and with undivided loyalty to the estate’s beneficiaries. If the executor breaches his or her fiduciary duty, he or she may be personally liable to the estate for damages. Your estate attorney can advise you on satisfying your fiduciary obligations.
Collecting & Liquidating Estate Assets
The executor is charged with the responsibility of collecting and liquidating estate assets. For instance, a will may direct that a house be sold and the proceeds divided among the beneficiaries. In this case the executor is responsible for preparing the house for sale, listing the property, contracting with a buyer willing to pay a fair price, and closing the deal. The expertise of an estate lawyer is extremely important in this process. Similar action must be taken with respect to collecting cash, securities, personal items, and any other estate asset.
The accounting is the final stage of administering an estate. The executor’s estate attorney will typically draft an informal account and distribute it to the interested parties. Each party signs a Receipt & Release which indicates that the distribution was received and that each party releases the executor from liability.
In certain, usually more acrimonious circumstances, a judicial accounting is necessary. This is an additional proceeding before the Surrogate in which the executor seeks a Court Order approving the executor’s account. A judicial accounting is often used in situations where an interested party refuses to approve the accounting and the executor seeks final settlement of her account before the Surrogate.
Follow this link for more detailed information on Accountings.
ANTONELLI & ANTONELLI – New York City Probate Attorneys serving Manhattan, Brooklyn, Queens, Staten Island, and the Bronx.
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