Probate Proceeding

If you have made a will, after your death the will is presented to the court in a probate proceeding. Probate is the court process where, after your death, the terms of your will are approved by a judge, and your assets, property and possessions are given out to your beneficiaries after your debts are paid off.

In New York State, probate proceedings take place in the part of the court called the “Surrogate’s Court” in the county where you were living when you died. Your assets, property and possessions are called your estate. The representative appointed by the court is called the “executor.” The legal documents that make that person your executor are called “letters testamentary.”

Only an estate valued over $30,000 must be probated when there is a will. An estate without a will is “administered,” not probated. Also, certain assets, like the proceeds of an insurance policy, retirement accounts, like a 401k and IRA, and other accounts with a named beneficiary, are not subject to the probate process.

In a probate proceeding, the executor named in the will files a petition in Surrogate’s Court along with the original of your will. The petition will include the date of death, beneficiaries named in the will, heirs-at-law in case the will is invalid, and an estimate of the value of the estate. All interested people, beneficiaries and heirs-at-law, will be notified of the probate proceeding.

Executors may be paid for their work based on the value of the estate. As part of this process, the executor is responsible for:

  • Locating and making an inventory of all your property and transferring it to the estate;
  • Paying your bills and taxes;
  • Collecting debts owed to the estate;
  • Investing and managing your assets during the probate proceeding; and
  • Distributing your property to those who you chose to receive it at the end of the probate proceeding

When probating a will, the judge’s job is to ensure that your will was properly executed by you and the witnesses, that you were of sound mind when you signed the will, and that you were not unduly influenced to make the will. After those factors are proven, the judge’s job is to ensure that your wishes are carried out as stated in the will. Usually, the judge does this by reading your will. However, in rare cases, there may be evidence that the language in a will does not reflect your wishes, or the will may have some problems. In that case, the judge may not be able to use it to carry out your wishes.

Legal Editor: Paul Chazan, March 2015

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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