Last Will and Testament in a Probate CaseThe term probate refers to the legal process an executor typically goes through to resolve a deceased person's estate. This includes proving the validity of the will or distributing the assets through the rules of intestacy if there is no will.

Is Probate Necessary?

Generally, probate assets are those which are solely owned by the deceased and do not have a beneficiary designation to allow them to pass to another person by operation of law. This includes individual bank accounts, solely owned homes, cars, jewelry, art, cash, and antiques.

Non-probate assets include:

  • Assets held in trust
  • Bank accounts with a named beneficiary
  • Retirement accounts, like a 401k and IRA
  • Life insurance policies with a named beneficiary
  • Jointly held savings, checking, and brokerage accounts
  • Jointly held real property

Probate may not be necessary if:

  • The estate is small. In New York, a small estate or voluntary administration proceeding can be filed as an alternative to probate if the decedent had less than $30,000 of personal property either with or without a will.
  • There are no probate assets. If a person's estate consists solely of non-probate assets, there is no need for the probate process.
  • The estate plan was created to avoid probate. Individuals with a moderate to high net worth often take steps to prepare an estate plan that avoids probate as a way to simplify the distribution of assets to their heirs.

What Is the Probate Process?

Probate involves several steps:

  1. Filing the probate petition. The executor must file the original will and a certified copy of the death certificate with the probate petition and other supporting documents in the Surrogate's Court of the county where the deceased person lived. There is a filing fee based on the size of the estate.
  2. Inventorying the property. The executor must collect the decedent's belongings and have them appraised as necessary.
  3. Paying outstanding debts and taxes. This includes mortgage payments, home equity loans, income taxes, property taxes, and other applicable accounts. If the estate does not have enough cash on hand to repay the obligations, assets may need to be sold.
  4. Distributing the remaining property as the will or state intestacy law directs. The distributees (the legal term for the heirs to the estate) are listed in the initial probate petition. They are served with a notice, formally called a citation, that requires them to submit to the jurisdiction of the Surrogate's Court.

The precise rules governing probate in New York are set forth in the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL). The probate process is a matter of public record under state law.

The legal documents giving a person the authority to act as the executor are called letters testamentary. The executor is allowed to be paid a commission for the time and effort required to distribute the estate. The commission is determined based on the size of the estate.

When a person dies without a will, they are said to have died intestate. A family member or friend will need to petition the court for the right to act as executor unless probate is not necessary.

Who Are Heirs-At-Law?

The term heirs-at-law refers to individuals who would be entitled to inherit the decedent's assets if they died without a will according to intestacy law. This typically includes surviving spouses, children, grandchildren, parents, or siblings. The closest living relatives have the first right of inheritance.

Heirs-at-law are important to the probate process because they have the legal standing to contest the will if they would have been able to inherit when the decedent died intestate. For example, if a man dies and only names three of his four living children in his will, the fourth person would be able to contest the will if they believe the omission was unintentional, that the decedent was not of sound mind at the time of the will's creation, or that the decedent was unduly influenced to make the will.

Do I Need an Attorney?

The length of time required to complete the probate process varies widely. If all heirs can be located, the will is uncontested, no appraisals are needed, and the debts are easily resolved, probate can be completed in three to six months. In more complex cases, especially those involving a contested will, probate can take years to be completed.

A probate attorney is not required under New York law, but legal assistance can save time and effort by ensuring that paperwork is completed properly and everyone with an interest in the estate receives the required notifications. If the will is contested, a probate attorney with experience in estate litigation and New York State civil practice rules can work with the executor to get the matter resolved.

Landskind & Ricaforte Law Group, P.C. offers probate services and estate litigation for New York residents. Call today to schedule a consultation with Renata Landskind, Esq. and Terence J. Ricaforte, Esq. Appointments are available in New York City, Staten Island, Queens, and Long Island.