Frequently Asked Probate and Estate Questions

Whether you need to prepare for changes in the life of your loved one or you are sorting out matters after a death, estate issues can be confusing and complex. On this Frequently Asked Questions page, the experienced lawyers at Antonelli & Antonelli share their perspective on many common issues. Don’t see your question here? Don’t hesitate to reach out to our New York City office.

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  • What is "property" in New York estate law?

    Definition of PROPERTY:

    (noun) / anything that may be the subject of ownership and is real or personal property, or is a chose in action1

    Plain English translation: Property is anything that can be owned. Real property is land. A house, building, or other structure is improved real property. A condominium apartment owner owns a fraction of the land on which the building sits. Personal property is essentially all other property. A “chose in action” is the right to recover personal property that is wrongfully held by another.

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    1 EPTL § 1-2.15; SCPA § 103 (44)

  • What is an "infant" in New York estate law?

    Definition of INFANT or MINOR:

    (noun) / a person who has not attained the age of eighteen years1

    Unlike its everyday meaning, "infant" does not mean a very young child or baby. It is the legal term, within the context of New York estate law, to refer to a minor.

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    1 New York Estates, Powers & Trusts Law §1-2.9-a; Surrogate’s Court Procedure Act § 103 (27)

  • What is an "incompetent" in New York estate law?

    Definition of INCOMPETENT:

    (noun) / a person judicially declared to be incapable of managing his or her own affairs1

    Plain English translation: In order for a person to be considered legally incompetent, a court must make a determination that the person cannot manage himself or his affairs by reason of age, mental illness, or otherwise.

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    1 New York Estates, Powers & Trusts Law § 1-2.9; SCPA § 103 (26)

  • What is an "estate" in New York estate law?

    Definition of ESTATE: (noun) / ownership interest

    Depending on the context, “estate” may mean: the interest which a person has in property or the aggregate of property which a person owns (New York Estates Powers & Trusts Law § 1-2.6).

    Plain English translation: “Estate” is used many different contexts but, at its simplest, it just means ownership.

    A person can own real estate, meaning an ownership interest in land, usually referred to as title, as in “the landlord holds title; the tenant merely has a right of possession.”

    “Trust estate” refers to property held by a trust where the trustee holds legal title (right to manage) and the beneficiary holds beneficial title (right to benefit from).

    “Probate estate” refers to property passing through one’s last will.

    When a living person refers to his or her “estate” it is usually a reference to the person’s aggregate ownership, as in “I’ve built a large estate of land, stock, and commodities.”

  • What is a "creator" in New York estate law?

    Definition of CREATOR: (noun) / a person who makes a disposition of property

    New York Estates Powers & Trusts Law § 1-2.2 provides this general definition. However, the usage varies depending on context. A “disposition of property” means a direction of where the property will pass or to whom it will pass as in “the creator disposed of his house by leaving it to his daughter through his trust.”

    The term “creator” is typically used in the context of a trust, whereas the term “testator” is typically used in the context of a will. “In her will, the testator left all her jewelry to her son.” The creator “creates” the document that disposes of the property.

    Synonyms include trustor and grantor.

  • What is a "codicil" in New York estate law?

    Definition of CODICIL: (noun) / a supplement to a will

    New York Estates Powers & Trusts Law defines a codicil as a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will (EPTL § 1-2.1).

    Plain English translation: a codicil is similar to an addendum or rider to a contract; it typically changes only some of the terms included in the will.

    Codicils have become rare since the advent of modern computers and word processing templates. In the pre-digital age, a codicil was a shortcut used to avoid having to retype an entire will. Today, attorneys often save the final draft of their clients' wills in a word processing program and can easily make changes. Even without the final draft, a new will can be populated relatively quickly.

  • What is a Holographic Will?

    Definition of HOLOGRAPHIC WILL:

    (noun) / a will written entirely in the handwriting of the testator and not executed and attested in accordance with the formalities prescribed by New York Estates Powers & Trusts Law § 3-2.1

    In order for a holographic will to be admitted to probate, it must be proven that the will was written entirely in the testator’s handwriting and that the testator, at the time the will was executed, was a member of the armed forces while in actual military or naval service during a war or other armed conflict; a person who serves with or accompanies an armed force engaged in actual military service during such war or armed conflict, or a mariner at sea.

  • What is a "fiduciary?"

    Definition of FIDUCIARY: (noun) / a trustee; an agent who represents a principal and acts in the best interest of the principal “the executor serves as a fiduciary of the estate”

    (adj) / involving trust, especially with regard to the relationship between a trustee and a beneficiary “the company has a fiduciary duty to its shareholders”

    Plain English translation: a representative of another; one who serves as a fiduciary for another has, not surprisingly, a fiduciary obligation to that other person or entity. A fiduciary obligation requires the agent to act with the utmost loyalty, good faith, care, and confidence. Simply put, the agent must act in the principal’s best interest.

    If we’re getting more technical (for you attorneys out there) . . .

    The New York Estates, Powers, and Trusts Law (EPTL) defines a fiduciary as a person or entity who:

    a) meets the description of a “personal representative”; or

    b) who is designated by the creator of a trust or by the court to act as an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.1

    A “personal representative” is a person who has received letters to administer the estate of a decedent. The term does not include an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.2

    But EPTL § 1-2.7 brings these excluded positions within the definition of a “fiduciary.” Therefore, “fiduciary” is a broader term than “personal representative.”

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    EPTL § 1-2.7

    2 EPTL § 1-2.13

  • How Long Does Probate Take?

    Probate is rumored to be a lengthy, difficult, and awful process, which is why many people attempt to avoid it when at all possible. However, while the process can be confusing and frustrating, it isn’t always as bad as it’s made out to be. A full understanding of the necessary steps involved in probating a last will and testament in New York is key to estimating how long the process will take. Be aware that the unique circumstances of each estate can greatly change the timeline. And there is no way to know exactly how long probate will take until it is complete. Time estimates vary widely because every estate is different.

    The probate process breaks down into three general stages:

    1) appointing an executor;

    2) marshaling assets and determining debts; and

    3) accounting.

    Below we review these stages, their estimated timelines, and some potential causes of delay. Understand that these are just estimates based on the assumption that no one is contesting any part of the process. If a contest occurs, then the parties litigate the dispute and all bets are off when it comes to time estimates. Remember—bringing one additional factor into the mix can cause significant delay.

    *The information in this article applies to probate of a last will and testament but it generally applies to the administration of an intestate estate, that is, the estate of a person who did not leave a last will and testament.

    Appointing an Executor (rough estimate: 30-90 days)

    The first step in the probate process is appointing an executor. The executor will oversee the administration of the estate. The executor is like the CEO of a company; she’s in charge but has to act in the best interest of the company (or the estate).

    The executor named in the will of the deceased has to bring forward the will for probate and the will must be authenticated or validated by the court. If we start the timeline on the day the executor first hires an attorney, then the timeline will look something like this:

    • Two weeks for the executor to gather necessary documents and information;
    • Two weeks for the attorney to draft the probate petition, have the executor sign it, and file the petition with the Surrogate’s Court.

    We’re looking at about a month before the petition is even filed. Some executors have everything up front and are ready to go right away. This speeds up the process. If death certificates or other documents need to be ordered, this can slow the process. All heirs at law are asked to consent to probate in writing. If the heirs don’t do this promptly, or at all, this can extend the timeline by weeks.

    Potential delay: If the executor does not know the location of an heir, this could cause delay because the executor must use “due diligence” in attempting to locate the heirs. The same issue arises where there are unknown heirs.

    Potential delay: If an heir contests the legitimacy of the will, then the parties litigate the dispute until it is resolved either by settlement or judicial decree. Will contests can take years to resolve.

    Assuming there is no will contest, the petition is submitted to the Court for review. If everything is acceptable to the Surrogate, then a decree will be issued appointing the executor. The time it takes for the Court to process the petition varies from county to county. Some of the less populated counties will issue a decree within two weeks of the filing date. The more populated counties, especially those within New York City, tend to be inundated with work and can take 6-8 weeks or longer.

    If we add up our time estimates of four weeks for preparing and filing the petition plus eight weeks for the Court to process it, our timeline is up to about three months for getting the executor appointed.

    In some circumstances, the Surrogate will consider expediting this process. If there is an emergency situation, the petitioner can ask the Surrogate to consider the application right away. However, there must be a truly urgent situation. The question to ask is, “if the executor is not appointed quickly, will the estate suffer a significant loss?”

    Marshaling Assets and Determining Debts (length varies widely; at least 7 months)

    Once the executor is appointed she must marshal, or collect, the decedent’s assets and determine what debts need to be paid. This length of this stage varies greatly depending on the type of assets and the difficulty in liquidating them. Debts are somewhat easier to determine but a delay can occur if the executor disputes a debt.

    Identifying and locating assets is accomplished through the executor’s knowledge and investigation. Investigation can include speaking with the decedent’s accountant, financial planner, attorney, and friends and family. There are also various databases that can be searched. Assets such as bank accounts and personal property can often be collected immediately. Occasionally, investment accounts take longer to liquidate.

    Selling real estate is often a lengthy process. A properly priced listing can result in an accepted offer in as little as a few weeks, but the seller and buyer then need to enter into a contract and complete the sale. The total time, from listing to closing, can easily take 90 days or more.

    Potential delay: The time it takes to sell real estate is very difficult to estimate because no two transactions are alike. Various pitfalls are: a buyer failing to obtain a mortgage commitment, title defects, the need to make repairs, the need to evict an occupant, or a beneficiary objecting to the sale. Any of these issues can delay the process by months.

    Potential delay: If a dispute arises over the ownership of property (does the decedent own it, or does someone else?), the parties would litigate the dispute until it is resolved by settlement or judicial decree. Litigation can take years to resolve.

    Debts can be paid once the executor determines that the estate is solvent (enough money to pay all expenses and debts). However, an executor might not be aware of a debt until the creditor files a claim. And executors are personally liable to a creditor if: a) the creditor files a claim within seven months of the executor’s appointment; b) there are insufficient funds to pay the creditor; and c) the executor distributed estate funds that would have been available to be paid to the creditor. Therefore, it is wise to make no distributions or pay any debts until at least seven months passes, subject to exceptions.

    Seven months is the shortest amount of time that this stage typically takes. Assuming there is no litigation in this stage, other delays can often be resolved in a matter of months. This puts the length of this stage, for many estates, at about a year.

    Accounting

    The accounting stage consists of the executor (or administrator) advising the interested parties, usually the beneficiaries, as to what was collected, what was paid out, and what is left to distribute. The purpose of the account is to release the executor from liability. This is accomplished in two ways: informal accounting or judicial accounting.

    Most estates are settled informally. The executor provides each interested party with a written account of her actions and proposed distribution. If acceptable to the party, then that person signs a Receipt & Release, indicating that the person received the proper distribution and releases the executor from liability. This process only takes as long as is required to put the account together and obtain the Receipts & Releases, often 30-60 days for simple estates.

    In certain circumstances, the executor will settle her account judicially. This consists of asking the Surrogate to approve the account (by filing a petition) and, if acceptable, the account is approved and the executor is released from liability (by decree of the Court). Circumstances that necessitate a judicial accounting include situations where an interested party refuses to sign a Receipt & Release and where an interested party is under a legal disability (e.g. an infant). The process starts with the drafting and filing of a formal account, petition, citation, and supporting documents. After the Court reviews the filings, which can take several weeks to several months, the Court will issue a citation to be served upon the interested parties. This sets a court date (about 30 days after issuance) to give the interested parties an opportunity to object to the executor’s account. If no one voices objections, then the account will go through a final review by the Surrogate’s law department and, if everything is in proper order, a decree will be granted approving the account and releasing the executor from liability. This can take several more weeks or months depending on how quickly things move in the particular county in which your proceeding takes place. Uncontested judicial account proceedings in the counties of New York City can easily take six months to one year or longer.

    Summary

    It’s worth it to state again: any estimate of how long it takes to probate an estate is just a guess and subject to delays. When a dispute arises, all bets are off. As you can see from this article, the estimates vary widely. Our estimates from above:

    • Appointing an estate representative: 30-90 days
    • Marshaling assets and determining debts: 7 months – 1 year or more
    • Accounting: 30 days – 1 year

    The range we get is 9 months to 2+ years. The variation in length is appropriate because every estate involves different issues with different levels of complexity. And sometimes, it is not even the complex issues, but rather the simple issues, that take a long time to resolve. Many estates can be administered in the 12-15 month range—occasionally shorter and occasionally longer. Litigated cases can take years to administer. When faced with an estate that appears to be relatively straight forward, I encourage clients to expect the process to take at least a year and to be prepared for delays that could bring the timeline closer to two years.

    What Can Be Done to Expedite the Probate Process?

    Most aspects of the probate process cannot be expedited. For example: you can’t control the time the courts take to process petitions and you can’t force people to respond to requests in a timely matter. However, there are a few things within your control:

    • Act quickly. It isn’t necessarily critical to start the process right away, especially considering the time needed to grieve after the loss of a loved one. However, if your goal is to minimize time, then the sooner you get started, the sooner you will finish.
    • Don’t go it alone. Self-represented executors are bound to make mistakes. Some can cost the estate money, but most cost time. A small error in your petition, could move your application to the bottom of the clerk’s pile. This is especially true in the counties of New York City where the Courts are inundated with cases, often have long backlogs, and the clerks have a limited ability to assist the self-represented. Will hiring an attorney be costly? Yes. But not having an experienced probate attorney can be more costly. This mindset applies to most aspects such as hiring accountants, real estate brokers, and other professionals who can assist in the estate administration process.
    • Stay organized. The administration process can include an overwhelming amount of information and documentation. Keep your records organized; retain receipts and emails; keep pristine account ledgers. This will save you time, and headache, in the long run.

  • 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.