By definition, Probate is proving the validity of a Last Will and Testament of an individual after he or she passes away. You may think that every Will is automatically admitted to Probate, but in New York, there are specific requirements for a Will to be admitted to Probate. Some of these factors include ensuring the Will is not handwritten, or holographic, except in a few situations. The person making the Will is call the Testator, and he or she must sign the Will at the end of the document. New York requires two disinterested witnesses for the Will to be valid. The Testator must have capacity to sign or execute a Will, and he or she must be free of duress and undue influence from another person. The Surrogate’s Court will review the Will as submitted, and the Surrogate will set a date and time for the Executor and any other interested parties to appear in Surrogate’s Court. Generally, if the Will is properly executed and if there are no objections, the Will is admitted to Probate, and the named Executor will be appointed as the Executor for the Estate of the deceased person. The Court will issue Letters Testamentary to the Executor following the Probate proceeding, which authorizes the Executor to act on behalf of the decedent’s estate and collect assets, pay bills and distribute to the beneficiaries named in the will. The Executor may receive payment for their work, in the form of an Executor’s Commission.
It is important to locate the ORIGINAL Last Will and Testament in the Probate process. Often the original Will is with the attorney who assisted the Testator when the will was prepared and signed. Most attorneys who store the original Will for clients should store such Wills in a secure location. Once the original Will is located and the Executor has possession, he or she may choose their own attorney to represent the Executor in the Probate process. There is NO requirement for the Executor to hire the attorney who prepared the Last Will and Testament. The Executor may choose their own attorney to assist with the Probate process. If the original Last Will and Testament cannot be located, there is a provision in New York law to allow a signed copy of the Will to be admitted to Probate with specific requirements.
When we are hired to represent an Executor named in a will, we first meet with the Executor and review the Last Will and Testament and other documents to begin the Probate process. We file a Petition for Probate and other supplemental documents with the Surrogate’s Court in the county where the decedent was domiciled. The original Last Will and Testament is one of the Probate documents to be submitted to the Surrogate’s Court. Generally, we also submit a Death Certificate, a Probate Petition which gives details of the decedent family, beneficiaries, descriptions and values of real and personal property and the named Executor’s information.
There are many clients who wish to avoid the Probate process. Probate is a not a private process, and many clients want their Estate to be privately distributed. There are several costs identified within the Probate process, including Surrogate Court fees, attorney fees and Executor commissions. However, many people believe the Probate process will take years to finalize. In reality, many Probate proceedings can be finalized within a year of the Surrogate’s Court’s approval of the Will and issuance of Letters Testamentary to the named Executor.
Which assets are Probate assets? Let us say A passes away with a valid Last Will and Testament. A names B as her Executor. When B gathers the information about A’s assets to include on the Probate petition, B finds that A owned her house jointly, with right of survivorship, with her sister, C. A retired from her employer with a life insurance policy which named D as her beneficiary. A also a brokerage account and three bank accounts in her own name. Finally, A owned 1000 shares of AmericaTheGreat common stock jointly with right of survivorship with her sister, C. For purposes of Probate, B will include only the brokerage account and the three bank accounts. The house and stock were owned jointly with her sister, and since her sister is the survivor, those assets pass to C by operation of law, and need not be included in the Probate petition. Additionally, the life insurance policy can be paid to D merely by D contacting the insurance company and presenting identification and proof of death. Any assets which list a joint owner or beneficiary are generally payable directly to that person, without the need for probate.
ADMINISTRATION OF A LAST WILL AND TESTAMENT- THE “COUSIN” OF PROBATE-
If a person passes away, and there is no valid Last Will and Testament but there are assets to pass through Probate, including assets held in the decedent’s name alone, an Administration proceeding may be necessary. Much of the process is similar to Probate, but there are distinct differences. New York law prioritizes family member who may apply as Administrator (similar to Executor) in Surrogate’s Court, since there is no written instructions from the decedent. The spouse is primarily entitled to receive Letters of Administration, then the children. Also, since there are no valid written instructions for property distribution, New York Estates, Powers and Trusts Law determines the beneficiaries and their shares. Without going into the process, one can imagine the results are less than desirable. For instance, if a spouse dies and leaves a surviving spouse and two children, the surviving spouse is only entitled to the first $50,000.00 and 50% of the residual Estate. The children share the other 50% of the residual Estate.
ARTICLE 13 PROCEEDING (SMALL ESTATE PROCEEDING)
Article 13 of the Surrogate’s Court Procedure Act (SCPA) offers a simplified process for Small Estates of $30,000.00 or less of assets not passing by operation of law (no joint owners or named beneficiaries). In the example above, if the total of the brokerage account and three bank accounts belonging only to A was $25,000.00, the named Executor if there is a valid Last Will and Testament, or an appropriate family member/distribute under New York law if there is no valid Will, may apply to become the Voluntary Administrator. This process should be a relatively inexpensive proceeding, and often can be completed without the assistance of an attorney. This proceeding is for personal property only, and only property totals not exceeding $30,000.00.
It is important to consult with an attorney who is experienced in these matters, and one who thoroughly understands the Probate and Administration process. Our office has provided competent and compassionate assistance at this most difficult time for many years, and would be honored to assist you and your family with navigating this process.