New York City Probate

The New York City Bar Association’s probate page offers a thorough overview of the probate process in New York, outlining key steps such as validating a will, appointing an executor, and distributing assets. It explains the roles and responsibilities of the executor, the types of assets that go through probate, and the legal requirements involved. The page also addresses common issues like handling debts and taxes, dealing with disputes, and navigating the complexities of estates without a will, which is called an Administration Process.

What is Probate?

Probate in New York State is the legal process through which a deceased person’s estate is administered and distributed according to their will or–in the absence of a will–in accordance with state law. This process is overseen by the Surrogate’s Court in the county where the deceased was living at the time of their death. During probate, the court validates the deceased’s will, appoints an executor to manage the estate, ensures all debts and taxes are paid, and oversees the distribution of the remaining assets to the rightful beneficiaries.

In New York, the probate process begins with the filing of a petition by the executor named in the will or, if there is no will (legally called intestate), by a family member or interested party who wishes to act as the estate administrator. The court then issues “Letters Testamentary” to the executor or “Letters of Administration” to the appointed administrator, granting them the legal authority to handle the estate’s affairs. The executor or administrator is responsible for inventorying the estate’s assets, notifying creditors and beneficiaries, settling debts, filing necessary tax returns, and ultimately distributing the assets as directed by the will or by state law if no will exists.

What is the Purpose of Probate or Administration?

The purpose of probate in New York is to ensure a person’s belongings and money are distributed properly after they die. This legal process provides a structured method to verify the validity of the deceased’s will, appoint an executor or administrator to manage the estate, and oversee the settlement of any outstanding debts and taxes. Probate helps make sure everything is completed according to the person’s wishes in their will, or according to state law if there is no will.

Probate also protects the executor or administrator by having the court oversee what they do. The court checks the will, lists the estate’s belongings, pays off debts, and makes sure the rest is given to the right beneficiaries. This process helps solve any arguments that might come up among the people who are supposed to get the belongings or from people who are owed money. This structured legal framework is essential for maintaining trust and order in the handling of a person’s final wishes and financial obligations.

Important Steps to Take Following You or a Loved One’s Death

After your death, there are certain steps that will need to be taken, whether or not you have a will. These include:

Finding Your Important Papers

You may have put your will or other important papers (like the deed to a burial plot or instructions about how to handle your body after death) in a safe deposit box. However, when the bank finds out about your death, it must seal the safe deposit box, and a court order might be required to unseal it. That Court order is applied for in the Miscellaneous Department of the Surrogate’s Court. Also, under the law, the police have to seal your home if you die there and live alone. If the will or other important papers are in a place that’s sealed, someone (such as the Executor named in the will, or your closest heir at law) will have to get the location unsealed by getting a court order. However, if someone rented the safe deposit box jointly with you, the bank must let that person, under bank supervision, examine the contents of the box and make copies of important papers.

Official Recording of Death

After your death, a death certificate must be obtained. A doctor or medical examiner will fill out one section of a death certificate. If there is a funeral home involved, the funeral director will then pick it up and fill out the rest of the information with the help of your family. The funeral director has 72 hours to file the death certificate. After that, copies are available from the New York State Department of Health (if you are outside of New York City) or from the New York City Department of Health and Mental Hygiene (if you are in New York City). Due to the COVID-19 pandemic, in-person ordering of death certificates in NYC is suspended until further notice. At this time, you can order a death certificate online or by mailing a copy of the death certificate application. Your spouse, parent, or child has a right to get a copy of your death certificate. Other people may be able to get a copy if they have a documented lawful right or claim, a documented medical need, or an order for a copy from a New York State court. It is prudent to order multiple copies of the death certificates from the funeral parlor if possible.

Handling of Your Body After Death

Your body must be buried or cremated, according to your prior instructions, if you have any. If you made written instructions for selecting someone to dispose of your remains, that person will handle those tasks. If you did not make such a selection, the law imposes responsibility in the following order: surviving spouse or domestic partner, and then moving on to adult children, surviving parents, surviving siblings, a guardian appointed by court order, all the way to close friends and beyond. The document that often gives instructions regarding the disposal of the body is called a “Remains Disposition.”

Preserving Your Assets

Your assets must be located and collected for deposit into an estate account. In rare cases, police seal your home after your death, and others will need a court order to have it unsealed.

Probate of Your Will

If you made a will, you most likely named an Executor who is responsible for filing your will with the court, collecting your assets, paying creditors, funeral expenses, any applicable taxes, and, finally, distributing the remaining assets to the heirs as stated in your will. Only an “original” of the will can be probated; copies of the will are not sufficient.

Administration of Your Estate If No Will

If you died without a will, then you are said to have died “intestate.” In this situation, the court will appoint a person to handle your estate, usually a close relative who will petition the court for an appointment. ​​The person appointed is called the “Administrator.”

The Probate Process in New York

If you have created a will, it is presented to the court in a probate proceeding after your death. Probate is the court process where a judge approves the terms of your will, and your assets, property, and possessions are distributed to your beneficiaries after your debts are paid.
In New York State, probate proceedings occur in the Surrogate’s Court of the county where you resided at the time of your death. Your assets, property, and possessions are collectively referred to as your estate. The court appoints a representative known as the “executor.” The legal documents granting this person the authority to act are called “letters testamentary.”

Only estates valued over $50,000 must go through probate if there is a will. For estates below $50,000, the court uses a “small estate proceeding.” Small estate proceedings cannot have any real estate in the assets. Estates without a will are “administered” rather than probated. Additionally, certain assets, like insurance policy proceeds, retirement accounts (e.g., 401k and IRA), and other accounts with named beneficiaries, are not subject to probate.
In a probate proceeding, the executor named in the will files a petition in Surrogate’s Court along with the original will. The petition includes details such as the date of death, beneficiaries named in the will, heirs-at-law in case the will is invalid, and an estimate of the estate’s value. All interested parties, including beneficiaries and heirs-at-law, are notified of the probate proceeding.

Executors may receive a commission for their work based on a statutory law percentage. Their responsibilities include:

• Locating and inventorying all property and transferring it to the estate
• Paying bills and taxes
• Collecting debts owed to the estate
• Investing and managing assets during the probate process
• Distributing property to the chosen beneficiaries at the end of the probate process

When probating a will, the judge ensures that the will was properly executed by you and the witnesses, that you were of sound mind when you signed it, and that you were not unduly influenced.

How a Probate and Estate Administration Attorney Can Help You

A probate and estate administration attorney can provide essential guidance and support throughout the probate process, ensuring that it is handled efficiently and correctly. They help by preparing and filing the necessary legal documents, representing the estate in court, and advising the executor or administrator on their duties and responsibilities. A probate attorney can also assist in locating and valuing the deceased’s assets, paying outstanding debts and taxes, and ensuring that the remaining assets are distributed according to the will or state law if there is no will.

Additionally, a probate attorney can help navigate complex issues that may arise, such as disputes among beneficiaries, challenges to the validity of the will, or complications with taxes and creditors. Their expertise helps prevent costly mistakes and delays, providing peace of mind to the executor and beneficiaries. By managing the legal intricacies of probate, a probate attorney ensures that the estate is settled in a timely and lawful manner, protecting the interests of all involved parties.

Filing an estate is a complex legal endeavor that often will have opposition–that is why most often, it requires the services of a legal professional to navigate the intricacies of the case.

Request a Consultation With a New York City Probate Attorney

A New York City probate lawyer can help you through the probate process and navigate complicated issues that may come up.

When you call the LRS to speak to one of our attorney referral counselors, all the information you provide to the counselor will be kept confidential to the fullest extent possible under the law. The referral counselor will ask you some questions to better understand your legal issue and to determine which one of our lawyers is best suited to handle your issue. If a referral to an LRS lawyer is not appropriate or necessary, the attorney referral counselor can offer you other options or further information to help you resolve your issue another way.

Contact us today to request a referral to one of our screened and qualified New York City Bar Legal Referral Service (LRS) lawyers.

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