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 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.

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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.

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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."

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • FAQ: What is a Beneficiary?

    Definition of BENEFICIARY: (noun) / one that benefits from something; the person named to receive proceeds or benefit; a person or entity designated by another to receive a gift of money or property

    A beneficiary under a last will and testament is known as a testamentary beneficiary.  For example, if John executes a last will and testament that states “I leave the sum of $1,000.00 to Jane”, then Jane is a testamentary beneficiary of John’s will.

    A will can provide for gifts to any number of individuals or organizations.  Therefore, there can be many beneficiaries of the same will.  When a will provides for only one beneficiary, that beneficiary is referred to as the sole beneficiary.  A will can also have many different types of beneficiaries.

    Typically, a will provides for both primary and contingent beneficiaries.  A primary beneficiary is the person who is designated to receive a gift.  A contingent beneficiary is someone designated to receive a gift but only upon the happening of a certain event.  In most wills, that “certain event” is the failure of a primary beneficiary to survive the person executing the will.  For example, John makes a will that states, “I leave the sum of $1,000.00 to Jane.  If Jane shall fail to survive me, I leave $1,000.00 to Henry”.  In this case, Jane is the primary beneficiary and Henry is the contingent beneficiary.

    A will can provide for other contingencies.  For example, John could put a provision in his will stating, “I leave my house located in Queens to my son, Dave, but only if Dave completes four years of college.”  Dave will not receive the house in Queens unless the contingency occurs, namely, if he completes four years of college.

    A trust can have similar provisions to those in a will, in which case the receiver of the gift is referred to as a trust beneficiary.  Further, beneficiaries can be designated on various types of assets including bank accounts and insurance policies.

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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
    Elix R. Madera-Fliegelman
    Chief Clerk
    718-618-2300

    Queens County

    Hon. Peter Kelly
    88-11 Sutphin Blvd.
    Jamaica, NY 11435
    James Lim Becker
    Chief Clerk
    718-298-0500
    Janet Tucker
    Deputy Chief Clerk

    Kings County (Brooklyn)

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

    Richmond County (Staten Island)

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

    Westchester County

    Hon. Brandon R. Sall                      Hon. Helen M. Blackwood,        Acting Surrogate
    111 Dr. Martin Luther King Jr. Blvd, 19th Floor                                    White Plains, NY 10601

    Johanna K. O'Brien
    Chief Clerk
    914-824-5656
    Eugene Yates
    Deputy Chief Clerk

    Suffolk County (Long Island)

    Hon. Theresa Whelan
    320 Center Drive
    Riverhead, NY 11901
    Michael Cipollino
    Chief Clerk
    631-852-1729

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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.

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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.”

    __________

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

    EPTL § 1-2.7

    2 EPTL § 1-2.13

  • 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.

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • 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

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.