Estate planning is an in-depth process that requires meticulous design to ensure a stress- free retirement and transition for you and your family. Probate is the process of proving the validity of a Will. After a loved one passes away (known as the decedent), a probate must be filed with New York Surrogate’s Court in order to dispute any assets the decedent held in their name at the time of the death. Once the Surrogate (the Judge in Surrogate’s Court) is convinced
that the Last Will and Testament is indeed that of the decedent than they will appoint an Executor to distribute the assets in the estate and carry out the wishes of the descendant. The entire process is conducted under the direct supervision of Surrogate’s Court.
Every state has different probate laws and processes. In matters relating to New York State probate law and process, it is set forth in the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL). SCPA defines terms relating to probate (i.e. – executor, person interested, estate); it sets forth the probate process, sets forth the procedure for commencing and maintaining probate proceedings and other related proceedings, as well as sets
forth rules governing the disposition of decedent’s property. Similarly, EPTL defines the duties and powers of a fiduciary of an estate. It also sets forth the requirements of due execution of a Will, of examining witnesses to a Will, of construing Will, and of seeking Letters to Administer an estate. EPTL also sets forth rules of a Trust. Probate is a lengthy process in New York State, but here’s a general timeline of how the New York probate process works:
- During the First month, the decedent’s Will is located and then read to the heirs. The Will determines who the decedent designated as the personal representative or executor of the Estate and how the assets will be distributed. The executor of the Estate hires a probate lawyer in New York to assist with the Estate Administration, legal and tax matters. The attorney for the Estate or the executor will need to obtain a certified copy of
the certificate of death which gets filed together with the original will and probate petition with the New York Surrogate’s Court.• During the Second month. The Court will issue Letters of Administration which allow the personal representative to act on behalf of the Estate. The personal representative must make a list of the assets, which may include opening the decedent’s safety deposit box, and compile a list of the creditors, as well as notifying creditors of the passing. It is
highly recommended that an accountant be hired to help with the Estate accounting or seek assistance from an attorney.
- During the Third Month. Personal and real property will need to be appraised and any property that needs to be sold to pay creditors or distribute funds to the heirs as part of the overall Estate distribution should be done so at this time.
- During the Fourth Month. By this time, the value of the Estate should be determined. The accountant or attorney representing the Estate will need to prepare a Form 706, Federal Estate Tax Return and the executor will need to pay any Estate taxes due out of the Estate proceeds.
- During the Fifth Month. All creditor’s claims should be paid and any disputes with other interested parties should be resolved.
- During the Sixth Month. The Federal Income Tax Return 1040 and 1041 must be filed and the final accounting should also be filed with the Surrogate’s Court so that plans can be made to wind up the estate.
- During the seventh, eighth, or ninth months. Unless there is ongoing litigation or other delays in selling real property or personal assets, the assets should be distributed to the beneficiaries and the petition to discharge the personal representative and wind up the Estate should be filed with the Court. At this point the Estate is then closed.
Bear in mind, this is just an estimate of the probate procedure and timeline. The size of the Estate, type of assets and other issues determine how long the process takes. Larger Estates may take up to a year or more to wind up. There can be all sorts of surprises and unexpected occurrences that can arise during a probate such as: Wills being contested by a family member or business partner, accounting may be contested, proceedings to remove the executor for breach of fiduciary duty, litigation claims filed by creditors, among other potential conflicts.
Due to the fact that there are so many formalities that must be taken care of in connection with the Administration of a New York probate that may be unfamiliar, most choose to hire a probate and Estate attorney to help guide them through the complex probate process. The Law Offices of Marjory Cajoux offers probate services and Estate litigation to New York residents. We can help you walk through the entire process and answer all your questions about securing
your future and the future of your family and loved ones.