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How To Probate a Will in New York State

12 August 2011 9 Comments


What is New York Probate?

How To Probate a Will in New York StateThis post below is a brief overview of the probate process in New York and is not meant to be comprehensive, nor is it meant to be nor is it legal advice. Based on search engine stats, many people are asking, “How To Probate a Will in New York State.”

The word “probate” is from the Latin “to prove.” Probate in New York is the legal process of proving the validity of an individual’s Last Will & Testament in Surrogates Court. When a person dies, all property (other than jointly-titled property, property passing by beneficiary designation such as life insurance proceeds and retirement plans, and property held in a trust), is subject to a probate proceeding if the person died with a will (if the person died without a will, the Court will appoint an administrator). A will is probated in the county where the decedent lived at death. If the decedent owned property in another state, additional proceedings typically are necessary in that state.

In the probate proceeding, the Surrogate’s Court determines whether a will was properly prepared and executed, whether it has been tampered with, and whether it is the genuine and only document setting forth the wishes of its maker in disposing of his/her property. Probate is necessary to appoint an executor to collect estate assets and to distribute those assets to the proper parties. Without probate, legal ownership of estate assets could not be transferred out of the decedent’s name and into the names of the decedent’s intended beneficiaries. Essentially, probate is designed to ensure that your plans in disposing of your estate will be honored after your death.

The probate process usually begins with the executor named in the will hiring a lawyer to file the original will with the Surrogate’s Court together with a formal set of papers (the primary set of papers being a petition), which identifies the executor, the individuals who receive bequests under the will (will beneficiaries), and those of the decedent’s relatives who have a right to object to the will and who would benefit if it were not declared to be valid in the probate proceeding (the decedent’s heirsat-law). The petition also describes the estate’s assets and identifies the witnesses to the will.

Before the Surrogate’s Court reviews the Will and other documents submitted to it by the executor’s lawyer, that lawyer must satisfy the Court that he/she has sent the appropriate notices that the will is being offered for probate. New York law is very specific as to who must receive that notice. Any relative of the decedent who would have inherited if the decedent had died instead without a will (the decedent’s heirs-at-law) must be notified that the will is being offered for probate. Also, anyone mentioned in the will for any purpose must receive notice. The decedent’s heirs-at-law typically will sign and have notarized a legal document consenting to probate of the will because this will save the estate time and money. If any of those heirs-at-law do not agree and fail to sign and return the consent, the Surrogate’s Court will issue a citation which is served upon that heir and which informs that heir as to the date, time and place when he/she must show up to voice his/her objection to probate of the will.

Once all the decedent’s heirs-at-law and will beneficiaries are located and served with notice of the probate proceeding, and if there are no objections by the heirs-at-law, the will is admitted to probate and the executor named in the will is appointed as the estate’s legal representative to carry out the 2 instructions set forth in the will with the court’s supervision. If any of the decedent’s heirs-at-law objects to the will, typically the witnesses to the will, the attorney draftsperson and other necessary parties will be questioned under oath. Discovery proceedings are available to uncover important facts and circumstances surrounding the making of the will. Ultimately, if the interested parties do not settle their differences, a trial will be held to determine if the will is genuine. If, as a result, the will is not admitted to probate, then the latest prior will may be considered. If there are no other wills, the estate will pass by intestacy (by state statute) in equal shares to the decedent’s relatives most closely related to him/her.

Though a probate proceeding sometimes poses challenges, it insures that all the decedent’s heirs-atlaw will get notice of the proceeding so that they have the opportunity to raise any objections. It also provides the best possible way of insuring that the actual wishes of the deceased will be honored.

What Property is Not Included in the New York Probate Process?

How To Probate a Will in New York State

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Lawrence J. Peck, Esq.
Founder of the Estate Planning New York Group
Manhattan, New York City

P.S. Click here for access to the 26 Most Common Estate Planning Mistakes.

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