Our Probate Frequently Asked Questions and Answers
Find the answers your family needs after the death of a loved on this FAQ page, as the legal team at Antonelli & Antonelli share their perspective on many common concerns. Learn more about probate—what it is, how it works, what it can accomplish, and what your role may be.
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FAQ – What is Probate & Estate Administration in NY?
In New York, the Surrogate’s Court handles cases involving the probate of decedent’s wills and the administration of decedent’s estates. The interpretation of this legalese is rather simple. When a person dies with a will, that person is said to have died “testate” and the will must be probated (Latin term meaning “to prove”) in order to carry out the terms of the will. When a person dies without a will, that person is said to have died “intestate” and the estate is administered according to the law of New York since there is no will directing the transfer of assets. The judge in Surrogate’s Court is called, appropriately, the Surrogate. In certain counties, such as New York County (Manhattan) and Kings County (Brooklyn), there are two sitting Surrogates. In other counties, such as Queens County and Bronx County, there is only one Surrogate hearing cases.
If a person has executed a will, that person (the “testator”) has memorialized her wishes concerning such questions as:
- Whom do I want to receive my money, real estate, and other property?
- Whom do I want to be named as guardian of my minor children?
- Whom do I want to be in charge of handling my estate after I am gone? (Who do I want to be my executor? aka estate representative or fiduciary)
- How do I want my remains to disposed of (e.g. burial, cremation)?
The will serves as the guidelines for handling the estate, which is controlled by the executor. Typically, the named executor in the will petitions the Surrogate’s Court, with the help of an estate attorney, to have the will admitted to probate and the named executor appointed as such by the Court. The petition is filed in the probate department. Admitting the will to probate means proving that the will is valid. The will must be properly executed; the testator must have possessed testamentary capacity (the necessary mental capacity to execute a will); the will must not have been revoked by the testator; the testator had to be acting under her own free will (no undue influence); and the will must not be the product of fraud. If the Surrogate is satisfied that the document is the legitimate last will and testament of the decedent, then the will is admitted to probate, the named executor is appointed by the Court, and the executor gains the authority to act on behalf of the estate in order to carry out the decedent’s wishes. In probate, those named in the will as receivers of gifts are known as beneficiaries.
If a person dies without a will, then the estate is distributed according to the laws of intestacy which are laid out in New York’s Estates, Powers, & Trusts Law (EPTL). With no will, the estate representative is known as the administrator. Although anyone with a monetary interest may petition the Court to have an administrator appointed, New York’s Surrogate’s Court Procedure Act (SCPA) lays out the order of priority as to who may serve as administrator:
Upon consent of all the relatives with a prior right (lower number on the above list), a relative with a subsequent right may serve as administrator. In other words, if the surviving spouse and children consent to the appointment of a grandchild as administrator, such grandchild may be appointed. In administration, those entitled to gifts are known as distributees.
The estate representative, whether an executor or administrator, is a fiduciary of the estate. This means the representative must act in the best interest of the estate and the distributees/beneficiaries. The fiduciary must act prudently and refrain from acting in the fiduciary’s own self-interest. The fiduciary is liable for damage caused by the fiduciary’s negligence.
The process, collectively known as estate administration, can be generally divided into three parts: 1) Appointment; 2) Marshalling Assets; and 3) Accounting.
Appointment generally consists of petitioning the Surrogate to appoint the estate representative (and admit the will, if any, to probate). Drafting the petition and gathering the necessary paperwork can be done in a matter of days or weeks depending on the complexity and difficultly involved. 2-4 weeks is a reasonable estimate for filing the petition. The Court will require an additional 2-4 weeks to process the petition. Therefore, a total of 4-8 weeks should be the anticipated length of the first part of the process. However, various issues can, and often do, arise and delay the proceeding.
Marshalling is the collecting of assets – selling real estate or personal property, transferring bank accounts in the estate account, liquidating stocks and other securities, and generally transferring all monies into the estate account. The estate account should be opened as soon as the estate representative is appointed. An Employee Identification Number (EIN) is required to be obtained from the IRS. (Keep in mind this number has nothing to do with employees.) Estate debts should also be ascertained in this second stage. The length of this stage varies widely and depends largely on what needs to be done in order to liquidate the assets. For instance, real estate usually takes longer to sell than a stock account, and most bank accounts are easily transferred into the estate account. Generally though, this middle stage is completed within 6 months from the date the fiduciary is appointed.
Accounting is the final stage of the probate and estate administration process. In this final stage, debts are paid and the fiduciary accounts for her actions by drafting an account. In an informal accounting, which is most common, the written account is provided to all interested parties for review. The account lists all the credits and debits of the estate along with a proposed distribution. If the parties approve the account, they sign a Receipt & Release. This document indicates that the party received the appropriate distribution and releases the fiduciary from liability. This final stage should not take more than a few weeks to complete, assuming there are no objections to the account.
A word of caution regarding timeline estimates – these are only estimates; problems often arise unexpectedly and delay the process. If one party decides to contest any element of these proceedings, the aforementioned timeline is no longer applicable. However, contests aside, if you are involved in an estate proceeding you should prepare yourself for a year long process that is subject to delays.
Antonelli & Antonelli, Attorneys at Law – Representation of Executors, Administrators, Creditors, and Heirs
While the process of administering an estate can appear overwhelming, our firm brings experience and care to an often trying situation. We have successfully represented many clients in their capacity as estate fiduciary. From petitioning the Surrogate to filing estate tax returns, we have probate and estate administration down to a science.
We also represent creditors of estates in filing claims and getting the estate process started where no one is taking action. In situations where heirs believe their inheritance is imperiled, for any reason, we help to make certain our clients receive what they are entitled to. And when a perilous situation turns into litigation, our firm vigorously fights for what is right. We have successfully represented clients in a variety of estate litigation matters.
More information is available on our Probate & Estate Administration page.
FAQ – Can a Copy of a Will be Admitted to Probate?
When a person passes away in New York State and their original Last Will & Testament cannot be located, New York law may allow a copy of the will to be admitted to probate. In order to probate a copy of a will, the Surrogate’s Court requires the person offering a copy of the will for probate to prove three key elements:
- That the will has not been revoked;
- That the will was properly executed in the same manner as required for an existing will; and
- All provisions of the will must be clearly and distinctly proven by at least two credible witnesses or by a copy or draft of the will, proven to be true and complete.
So what does all this mean? We will look at each of the three elements in order to demonstrate what must be proven to the Court in order to admit a copy of a will to probate.
Proving the Will Was Not Revoked:
Under the laws of New York State, a will is revoked by:
- The execution of a subsequent will;
- A writing of the testator (a person who has made a will) clearly indicating an intention to revoke the will which is executed with the same formalities of a will; or
- By ripping, burning, tearing or another act of destruction.
If the testator was in possession of the original will during the testator’s life and the will cannot be located after the testator’s death, a presumption arises under New York law that the testator destroyed the will with the intention of revoking it. However, it is possible to rebut this presumption with sufficient evidence showing that the will was not revoked.
Proving the Will Was Properly Executed:
Wills must be executed in strict compliance with the provisions of New York Estates, Powers, & Trusts Law (EPTL) §3-2.1. The elements of due execution are:
- The signature of the testator must appear at the end of the will, just before the witness attestation clause;
- The testator must sign the will in the presence of each of the witnesses, or his signature shall be acknowledged to each witness as his signature;
- The testator must declare to each of the witnesses that the document they are witnessing is the testators will; and
- There must be two witnesses to the will. The testator must ask each witness to sign his will. Additionally, both witnesses must sign the will within 30 days of each other.
Under New York law, if the execution of a will was supervised by an attorney, there is a presumption that the will was executed in compliance with the above formalities. In addition to these technical formalities, the proponent of the will also has the burden of proving that the testator had the mental capacity required to execute a will.
Proving All Provisions of the Will:
New York State law requires that at least two credible witnesses attest to the full contents of the will. Typically, the attesting witnesses are unable to recall every single provision of the will in detail. Therefore, the law allows a copy of the will to be admitted to probate on the testimony of the attorney that drafted the will, a secretary who typed the will, or a trust officer nominated as a fiduciary in the will who can identify a copy or draft of the will and recall its provisions. They are not required to recall the exact language contained in the will but must be able to recall the substance of the will.
In situations where the heirs at law are not the same individuals as those named in the will, then a will contest may arise. A will contest is a legal dispute concerning the validity of a will, or the legitimacy of a copy of a will.
So, can you admit a copy of a will to probate? The answer is “maybe”, that is, if you have all the right evidence. Due to the complexities involved in determining and obtaining the right evidence, you should speak with an experienced estate attorney to assist in attempting to probate a copy of a last will and testament.
FAQ: What is an Administrator’s bond in Surrogate’s Court?
An Administrator’s bond is a type of insurance policy that guarantees the proper administration of an estate. In Surrogate’s Court, an Administrator is usually required to post a bond before he or she qualifies to receive the appointment (also known as being granted Letters of Administration). Executors are usually exempt from the bond requirement because most Last Wills & Testaments authorize the Executor to serve without a bond. A bond is also not required upon the consent of all necessary parties. Bonds protect estate beneficiaries and creditors from the negligent and intentional acts of fiduciaries that cause harm to the estate.
FAQ: Who May Serve as Executor of a Will in New York?
In New York, when a person dies testate the last will and testament usually names an executor. It is typically the nominated (named) executor who serves in that capacity – but not always. Sometimes the nominated executor is deceased, disqualified as a potential fiduciary, or simply does not want the job. Who is then entitled to serve as executor of the estate?
First: some potential reasons why the executor nominated in the will might not be able to serve. The nominated executor is not permitted to serve if he or she is:
- Under the age of 18;
- Incompetent (lacks understanding);
- A non-resident alien, that is, a person who is neither an American citizen nor lives in the United States;
- A convicted felon (or convicted of a crime in another state that would be a felony under New York law).
(Surrogate’s Court Procedure Act §707)
Further, individuals 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” are not eligible to serve as executor. Nor are individuals who are deemed ineligible in the Surrogate’s discretion. Surrogate’s Court Procedure Act §707.
Most wills name an alternate executor, which is important when the named executor does not serve. In some situations, the will does not name an alternate executor or the alternate executor cannot or will not serve. If this is the case, a person not named in the will might seek to be appointed to represent the estate. Such a person is referred to as “administrator c.t.a.” (And that person seeks Letters of Administration c.t.a.) The abbreviation “c.t.a.” stands for cum testament annexo, Latin for “with the will attached”. An administrator c.t.a. functions like an executor, having the authority to collect and distribute the decedent’s assets pursuant to the terms of the will (not the laws of intestacy).
Under New York law, the following individuals, in order of priority, may serve as Adminstrator c.t.a:
- The sole beneficiary named in the will (if any), or if he is deceased, his fiduciary;
- One or more of the residuary beneficiaries, or if any is deceased, his fiduciary;
- If no eligible person under sections 1 and 2 above will accept, the Surrogate may issue letters to one or more individuals interested in the estate, or if any is deceased, to his fiduciary.
- If no eligible person under sections 1, 2, and 3 above will accept (and no appointment is made upon the consent of all beneficiaries), then letters issue to the Public Administrator.
- If no one under the above sections will accept letters, the Surrogate may issue them to the petitioner; if the petitioner does not accept, then letters may issue to any person designated by the Surrogate (however, this rarely happens).
Letters may also be granted to a person not otherwise entitled to serve if all the beneficiaries are eligible to serve and they all consent to the appointment.
For example, suppose Sam passes away leaving a will, in which he leaves his entire estate to his sister, Fiona. Fiona is a fashion model who is constantly traveling the world for photo shoots and does not have the time to take on the responsibilities of an executor. Assuming Fiona is eligible to serve as executor, she may designate her trusted friend Alex to serve as administrator c.t.a. if he is willing to accept. This is true even though Alex has no interest in the estate.