Probate

Probate is the court process during which the estate (assets, property and possessions) of a person who has died with a will (“the decedent”) is settled and distributed to heirs and other people. Probate proceedings take place in the New York Surrogate’s Court located in the county where the decedent lived. The purpose of a proceeding in Surrogate’s Court is to settle all claims against the decedent so that property and assets can be distributed to designated recipients under a will, without fear of future challenge. Only estates valued over $30,000 must be probated; estates without a will also are not probated—the law of intestacy determines how these estates are settled.

How does a probate proceeding work?

  • The executor named in the will should file a petition in Surrogate’s Court along with the decedent’s will. (If there is no will, any person who qualifies under the laws of intestacy may file a petition to have an administrator appointed by the court.)The petition will include the date of death, beneficiaries in the will, heirs in case the will is ruled invalid, and an estimate of the value of the estate;
  • All interested people, beneficiaries and heirs, will be notified of the proceeding;
  • Any person with an interest in the will (includes beneficiaries named in the will and heirs who are not beneficiaries named in the will, but who would receive a distribution if the will is invalid) can challenge the validity of a will in what is called a “will contest.” The grounds for challenge include that the will was signed under duress or undue influence; that the decedent lacked capacity to make the will; that the will is a fraud; and that the will was not signed, sworn, or witnessed according to the rules of the New York Estates, Powers and Trusts Law.
  • The court resolves any claims and issues an order settling the matter:
  • If the court determines the will is valid, the executor will be able to exercise his authority to administer the estate.
  • If the court decides the will is invalid, the estate will be treated as if the decedent left no will, and the rules of intestacy will apply, which means the court will appoint an administrator, and the decedent’s property will go to the lawfully recognized heirs rather than those named in the will.
  • If the court decides that parts of the will are invalid, the court will apply the laws of intestacy to those parts.

Does all property go through probate if the decedent left a will?

No, some assets, like the proceeds of an insurance policy, retirement accounts, like 401k and IRA, and other accounts with a named beneficiary, do not pass through probate.

I need help with a probate matter:

  • Determine your interest in the matter.
  • Gather any relevant documents that might be important to your concern
  • Get in touch with an experienced estate and trust lawyer.

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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