When someone passes away (called the decedent), their belongings need to be handled properly before they can be given to family members or other people. This process usually happens in one of two ways: 1) if the person left a legal document called a Will that says who gets their things (this is called a testate inheritance), or 2) if the person did not leave a legal or valid Will (this is called an intestate Estate).
If a person dies and has a Will, the first step is to bring the original, unchanged Will to the Surrogate’s Court in the county where the decedent lived. This starts the process called Probate, where the Court checks if the Will is legal and valid.
However, if a person dies without a Will or the Will is not legal or valid, their closest relatives must go through a different process called Administration. Administration is when the Surrogate’s Court appoints someone (called a fiduciary) to manage the person’s belongings since there is no legal or valid Will.
Both Probate and Administration, described generally below, can be long and complicated for the family of the person who passed away, but we are here to streamline the process and make it easier for you!
Step 1: Filing the Petition and Supporting Documents
The probate process in New York starts with filing a Petition for probate in the Surrogate’s Court in the county where the deceased person lived. This Petition is usually filed by the Executor named in the Will. Along with the Petition, you need to file the original Will, affidavits, a paid funeral bill, a certified copy of the death certificate, and a list of the deceased person’s assets. This step begins the legal process to prove the Will is real and lets the Executor manage the Estate. Sometimes, other documents might be needed depending on the situation.
Step 2: Notifying Interested Parties
After filing the Petition, the person who filed it must get waivers from or send a court-issued notice (called a Citation) to all interested parties, like heirs, beneficiaries, and possible creditors. This Citation tells them about the probate proceeding and advises them of their right to contest the Will. The Executor or Petitioner has to make sure these parties get the Citation and provide proof to the Court. This step is important so everyone knows about the proceeding and can raise any objections.
Step 3: Validating the Will
The Court then checks the Will to make sure it follows all legal rules, like being in writing, signed by the person who made the Will (the testator), and witnessed by at least two people who signed in the testator’s presence. The Court might ask the witnesses to testify or provide affidavits that the Will was properly signed. Interested parties can object to the Will if they believe the testator lacked the mental capacity to make it, was unduly influenced, or the Will was not properly executed. If objections are filed, the Court Will hold a hearing to decide if the Will is valid.
Step 4: Appointing the Executor
If the Court finds the Will is valid and there are no successful objections, it appoints the Executor named in the Will by giving them Letters Testamentary. This legal document allows the Executor to manage the Estate. The Executor might need to post a bond to protect the Estate’s assets, unless the Will says this isn’t necessary. The Executor then takes on the responsibility of managing the Estate according to the Will and New York law.
Step 5: Gathering and Managing the Estate
The Executor must collect and list all of the deceased person’s assets, which can include real estate, bank accounts, investments, personal property, and any debts owed. Some assets might need to be appraised to know their value. The Executor is responsible for managing these assets, paying ongoing expenses, and keeping the property safe until it can be given to the beneficiaries. The Executor is paid for their work as specified by New York law.
Step 6: Paying Debts and Taxes
The Executor must notify creditors of the deceased person’s death and pay all valid debts from the Estate’s assets. They also have to file the deceased person’s final income taxes and any Estate tax returns. This step makes sure all financial obligations are met before the Estate is distributed to the beneficiaries, protecting it from future claims.
Step 7: Distributing the Estate
After paying debts and taxes, the Executor prepares a final accounting of the Estate’s assets, debts, expenses, and how they plan to distribute the remaining assets to the beneficiaries. This accounting is submitted to the Court for approval. Beneficiaries can review and object to the accounting if they think there are mistakes. Once the Court approves, the Executor distributes the remaining assets according to the Will.
Step 8: Closing the Estate
The final step is the Executor filing a Petition for discharge, asking the Court to release them from their duties. The Court reviews the Petition and, if satisfied with the Estate’s administration, issues a final decree closing the Estate. This decree marks the end of the probate process, and the Executor is officially done with their responsibilities.
Step 1: Filing the Petition and Supporting Documents
The administration process in New York starts with filing a Petition for probate in the Surrogate’s Court in the county where the deceased person lived. This Petition is usually filed by the deceased person’s closest relatives. Along with the Petition, a certified copy of the death certificate, a paid funeral bill, and a list of the deceased person’s assets must be filed. This step starts the legal process to identify the legal beneficiaries and allow the Petitioner to manage the Estate. Other documents might also be needed depending on the situation.
Step 2: Notifying Interested Parties
After filing the Petition, the person who filed it must get waivers from or send a court-issued notice (called a Citation) to all interested parties, like heirs, beneficiaries, and possible creditors. This Citation tells them about the administration proceeding and their right to contest the Petitioner’s appointment as Administrator. The Petitioner must make sure these parties get the Citation and provide proof to the Court. This step is important so everyone knows about the proceedings and can raise any objections.
Step 3: Validating the Petition
The Court then checks the Petition and supporting documents to make sure all legal rules have been followed and that the Court has notified all interested parties. Any interested parties can object to the appointment of the Petitioner as Administrator of the Estate. If objections are filed, the Court will hold a hearing to decide if the Petitioner can be the Administrator.
Step 4: Appointing the Administrator
If the Court approves the Petitioner as the Administrator and there are no successful objections, it appoints the Petitioner by giving them Letters of Administration. This legal document allows the Administrator to manage the Estate. The Administrator might need to post a bond to protect the Estate’s assets. The appointed Administrator then takes on the responsibility of managing the Estate according to New York law.
Step 5: Gathering and Managing the Estate
The Administrator must collect and list all the deceased person’s assets, which can include real estate, bank accounts, investments, personal property, and any debts owed. Some assets might need to be appraised to know their value. The Administrator is responsible for managing these assets, paying ongoing expenses, and keeping the property safe until it can be given to the beneficiaries. The Administrator is paid for their work as specified by New York law.
Step 6: Paying Debts and Taxes
The Administrator must notify creditors of the deceased person’s death and pay all valid debts from the Estate’s assets. They also have to file the deceased person’s final income taxes and any Estate tax returns. This step makes sure all financial obligations are met before the Estate is distributed to the beneficiaries, protecting it from future claims.
Step 7: Distributing the Estate
After paying debts and taxes, the Administrator prepares a final accounting of the Estate’s assets, debts, expenses, and how they plan to distribute the remaining assets to the beneficiaries. This accounting is submitted to the Court for approval. Beneficiaries can review and object to the accounting if they think there are mistakes. Once the Court approves, the Administrator distributes the remaining assets according to New York’s intestacy laws.
Step 8: Closing the Estate
The final step is the Administrator filing a Petition for discharge, asking the Court to release them from their duties. The Court reviews the Petition and, if satisfied with the Estate’s administration, issues a final decree closing the Estate. This decree marks the end of the administration process, and the administrator is officially done with their responsibilities.
Though both processes can be long and challenging, the Law Office of J Bacher PLLC is here to help! Our experienced attorneys will support you every step of the way and make sure this process is smooth and your rights and interests are protected.
