What Is Probate?
Probate is the term for a legal process that verifies a will is valid and transfers assets out of the deceased person’s name into the name of the living.
Probate also occurs if the deceased dies without a will. In New York, when an individual dies without a will, the estate assets will be distributed under state “intestate succession” laws, as outlined in, EPTL 4-1.1, rather than according to the wishes of the deceased.
Who Can File A Probate Proceeding?
When there is a Will, the named executor is responsible for administering the estate and making sure the decedent’s final wishes, as stated in the Will, are carried out. The executor must file for probate in the Surrogate’s Court in the county where the deceased had their primary residence.
If the deceased did not leave a Will, dying intestate, does not name an executor in their Will, or a named executor declines the appointment, the court will choose an administrator of estate. The administrator must then ensure the estate is settled according to New York intestacy laws.
Determining the Deceased’s Primary Residence
Probate proceedings must be filed in the Surrogate’s Court of the county where the deceased resided and considered their primary home address before they died. If the deceased had multiple residences, the one in which they intended to return is considered the primary residence.
If the deceased resided in a nursing facility prior to their death, the primary residence would be the one in which they lived before entering the facility, regardless of whether they still owned or rented the home at the time of their death.
When There Is A Will
A Last Will and Testament is a legal document that indicates how you would like your property allocated at the time of your death. It can also allow you to appoint a guardian for your children.
The deceased’s Will must be filed in Surrogate’s Court for probate before the instructions of the person who died, as detailed in the Will, can be carried out.
Condition of the Will
In many states, a will can be challenged if there appear to be additional staple holes in the document or no staples at all. This is because it begs the question of whether the will has had pages removed, added, or altered at any time since the moment it was executed. At best the court will often allow those who had possession or knowledge of the document to give an affidavit to the court as to why the staples were removed or missing. The same may hold true if the will is unstapled- an affidavit would need to be provided to the court that no pages were inserted and why the will remains “unstapled”.
When There Is No Will
When there is no will to name an executor, it’s said that they died intestate. When a person dies intestate, that person’s property is distributed according to New York law (EPTL 4-1.1).
What each living relative receives depends on their relationship to the deceased, also called the “Decedent”. When there is no will, the family members entitled to a share of the estate are called “distributees”. New York law provides the following:
The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses, and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8.
If there is no Will, generally, the “closest distributee” can file for administration or small estate. If the closest distributee does not want to administer the estate, they can sign a renunciation and waiver.
If you have questions regarding the New York probate process please contact our office at (914) 228-7448.