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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  • 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.

  • What are "letters of administration" in New York estate law?

    Definition of LETTERS OF ADMINISTRATION: (noun) / under New York law, the name of the official document appointing a person to act as the representative (administrator) of an estate where the decedent has died intestate (without a will)

    Letters of Administration are issued by the Surrogate’s Court after the appropriate petition is filed and approved.

  • What are "letters testamentary" in New York estate law?

    Definition of LETTERS TESTAMENTARY: (noun) / under New York law, the name of the official document appointing a person named in the will to act as the representative (executor) of an estate where the decedent has died testate (with a will)

    Letters Testamentary are issued by the Surrogate’s Court after the appropriate petition is filed and approved.

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

    Definition of DECEDENT: (noun) / a deceased person

    A decedent is used to refer to a person who has died.  For example, "The decedent resided in the Bronx and was survived by three heirs."

  • FAQ: What is Surrogate’s Court?

    Definition of SURROGATE’S COURT: (noun) / a specialized court that deals with probate and administration of estates, certain types of guardianships, and certain types of adoptions; also known as “probate court”

    The New York State Surrogate’s Court hears cases involving the affairs of decedents, the probate of wills, and the administration of estates.  Adoptions are also processed through the Surrogate’s Court.  Who is the Surrogate? A Surrogate is a specific type of judge.  It refers to the judge who hears cases in Surrogate’s Court.

    New York County (Manhattan)

    Hon. Nora S. Anderson
    Hon. Rita Mella
    31 Chambers Street
    New York, NY 10007
    Diana Sanabria
    Chief Clerk
    646-386-5000
    Jana Cohn
    Deputy Chief Clerk

    Bronx County

    Hon. Nelida Malave-Gonzalez
    12th Judicial District
    851 Grand Concourse
    Bronx, NY 10451
    Michael P. Hausler
    Chief Clerk
    718-618-2300
    Earnestine Glover
    Deputy Chief Clerk

    Queens County

    Hon. Peter Kelly
    88-11 Sutphin Blvd.
    Jamaica, NY 11435
    Margaret Gribbon
    Chief Clerk
    718-298-0500
    James L. Becker
    Deputy Chief Clerk

    Kings County (Brooklyn)

    Hon. Diana A. Johnson
    Hon. Margarita Lopez Torres
    2 Johnson Street
    Brooklyn, NY 11201
    Doreen A. Quinn
    Chief Clerk
    347-404-9700

    Richmond County (Staten Island)

    Hon. Robert J. Gigante
    18 Richmond Terrace
    Staten Island, NY 10301
    Ronald M. Cerrachio
    Chief Clerk
    718-675-8500
    Jane E. Stilwell
    Deputy Chief Clerk

  • FAQ: What is a Grantor?

    Definition of GRANTOR: (noun) / a party who transfers ownership of property to another

    As applied to trust law, the grantor is the party who creates a trust and transfers or grants money to the trust.  In real estate law, the grantor is the transferor or seller of real property.

  • Who May Serve as Administrator of a Decedent’s Estate?

    When a decedent passes away intestate (without a will), New York Law (Surrogate’s Court Procedure Act §1001) prescribes who may serve as Administrator of the decedent’s estate.  

    Letters of Administration are granted to the following individuals, in order of priority:

    • The surviving spouse;
    • Children;
    • Grandchildren;
    • Father or mother;
    • Brothers or sisters;
    • Any other distributee, aka heir, (preference given to the person entitled to the largest share in the estate.
      • However, if the distributees are issue of grandparents, other than aunts or uncles, on only one side, then Letters of Administration will be granted to the Public Administrator.

    For example, if a decedent is survived by a spouse and two adult children, then the spouse is first in line to serve as Administrator followed by the two children who have an equal right to serve. Note that where there is more than one person in a class entitled to serve (e.g. if the decedent was survived by no spouse and two adult children) each person in the class is on equal footing. If there is disagreement as to which person in the class will serve as Administrator, then the Surrogate has the final say. However, this type of situation is often resolved by an agreement between the heirs to serve as co-Administrators or by requesting that the Public Administrator be appointed to represent the estate. If all heirs eligible to serve are in agreement, they can designate a non-heir to serve as Administrator. If there are no eligible heirs, then consent of all heirs is required. It is important to note that in a small estate proceeding (aka Voluntary Administration, where the estate is valued under $30,000) SCPA Article 13 does not allow the heirs to designate a non-heir to serve as Voluntary Administrator. In such a case, full Administration under SCPA Article 10 would be necessary. It is important to note that certain individuals are disqualified to serve in the role of Administrator (this rule applies to all fiduciaries seeking Letters from the Surrogate).

    Some People Can't Be Administrators of an Estate in New York

    Under New York Surrogate’s Court Procedure Act §707, the following individuals are disqualified from serving as Administrator of an estate:

    • Infants (under 18 years of age);
    • Incompetents (lacking sufficient understanding; typically mentally incapacitated);
    • Non-domiciliary aliens (neither a US citizen nor a US resident), unless they serve with an eligible co-fiduciary;
    • Convicted felons;
    • Persons who do not “possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit to the execution of the office”;
    • Persons ineligible in the Court’s discretion, for example, a person who cannot read or write in the English language.

  • FAQ: What is an Administrator?

    Definition of ADMINISTRATOR: (noun) / any person to whom letters of administration have been issued (NY SCPA §103(2)); a person legally appointed to represent an intestate estate

    An administrator is appointed by the Surrogate’s Court to act on behalf of an estate where the decedent had no will, known as dying intestate.  Letters of Administration refers to the document issued by the Surrogate granting authority to an administrator.

    The word “administratrix” used to be regularly applied as the female equivalent of “administrator”.  It is less common today especially in the Surrogate’s Courts of the 5 boroughs of New York City.  Usage of the suffix “-trix” as applied to any word to indicate the female version is becoming increasingly outdated

  • FAQ: What is an Executor?

    Definition of EXECUTOR: (noun) / any person to whom letters testamentary have been issued (NY SCPA §103(20)); a person legally appointed to represent a testate estate

    An executor is appointed by the Surrogate’s Court to act on behalf of an estate where the decedent died with a will, known as dying testate.  Letters Testamentary refers to the document issued by the Surrogate granting authority to an executor.

    The word “executrix” used to be regularly applied as the female equivalent of “executor”.  It is less common today especially in the Surrogate’s Courts of the 5 boroughs of New York City.  Usage of the suffix “-trix” as applied to any word to indicate the female version is becoming increasingly outdated

  • FAQ: What is a pecuniary interest?

    Definition of PECUNIARY: (adjective) / of or relating to money

    In estate law, a pecuniary interest refers to one’s interest in an estate that relates to money.  Likewise, a pecuniary loss refers to a loss that can be measured in terms of money.