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must have possessed testamentary capacity (the necessary mental capacity to execute a will); the will must not have been revoked by the testator; the testator had to be acting under her own free will (no undue influence); and the will must not be the product of fraud.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.