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Browse our 1 legal question about Probate in United States and the lawyer answers, or ask your own questions for free.
Hello: We are sorry to hear about the passing of your husband, and we extend our deepest condolences. Regarding your concern, since your husband was a Filipino citizen and you are now both U.S. citizens residing in California, the property...
Read full answerProbate is the legal process through which a deceased person's assets are distributed, debts are paid, and property is legally transferred to heirs or beneficiaries. In New York, this process is carried out under the supervision of the Surrogate's Court. Probate typically begins when an individual passes away with a will (testate), but similar proceedings, called administration, also occur if the person died without a will (intestate). The process ensures that the deceased's wishes are honored (if there is a will), creditors are paid, and legal ownership of assets is properly transferred according to New York law.
Probate can be a complex and emotionally challenging process, especially while coping with the loss of a loved one. A lawyer can provide critical guidance and support in various situations, including:
- Interpreting the validity and provisions of a will - Navigating disputes among beneficiaries or potential heirs - Handling significant debts or creditor claims against the estate - Managing complex assets or significant real estate holdings - Ensuring proper filing and communication with the Surrogate's Court - Addressing suspected fraud, undue influence, or contested wills - Reducing the risk of personal liability for executors or administrators - Dealing with potential tax consequences and legal obligations
Even straightforward estates can present unexpected legal challenges. A probate attorney can help smooth the process, resolve issues, and uphold the decedent's wishes in accordance with New York law.
Probate in New York is governed mainly by the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL). Notable aspects of New York probate law include:
- The process is typically handled by the Surrogate's Court in the county where the decedent resided - The executor named in a will must petition the Surrogate's Court for authority, while an administrator is appointed if there is no will - Heirs, beneficiaries, and certain family members must be officially notified - Real estate, bank accounts, personal belongings, and other assets solely in the decedent's name are generally subject to probate - Small estates (currently those valued under 50,000 dollars not including real property) may qualify for a simplified process called voluntary administration - Creditors must be given an opportunity to file claims against the estate - New York's intestacy laws govern how assets are distributed when no will exists - Probate can take several months or more depending on the estate's complexity and whether disputes arise
Certain assets such as joint accounts, retirement accounts with named beneficiaries, life insurance proceeds, and assets held in trusts may not require probate in New York.
Probate is the court-supervised process of distributing a deceased person's assets, paying debts, and transferring title to heirs or beneficiaries. It ensures that the decedent's wishes, if expressed in a valid will, are carried out and that all legal and financial responsibilities are met.
No, not all estates require probate. Small estates (under 50,000 dollars with no real estate) may go through a simplified process. Assets with designated beneficiaries or those held jointly typically bypass probate.
If a person dies without a will (intestate) in New York, the probate court appoints an administrator and the estate is distributed according to state intestacy laws, which specify the order of priority among surviving relatives.
The probate process can take several months to more than a year, depending on the estate's complexity, potential disputes, and court caseload. Simpler estates and small estates typically conclude much more quickly.
Anyone over the age of 18 who is of sound mind, and not a convicted felon, can serve as an executor in New York. Courts may disqualify individuals under certain circumstances.
Executors are required to notify potential creditors and give them an opportunity to file claims. Valid debts must be paid before distributing assets to beneficiaries.
Certain planning strategies, such as setting up living trusts, naming beneficiaries on accounts, and holding assets jointly, can help assets pass outside of probate. Consulting an attorney for estate planning advice can help minimize the need for probate.
Costs can include court fees, executor or administrator commissions, legal fees, and expenses for appraisals or other administrative costs. Fees generally depend on the size and complexity of the estate.
If a will is contested, the court will hold hearings to resolve the dispute. Common grounds for contesting include lack of capacity, undue influence, fraud, or improper execution.
An experienced probate attorney provides valuable guidance on court procedures, document preparation, dispute resolution, and ensuring compliance with New York law, helping minimize stress and reduce costly mistakes.
- New York State Unified Court System, Surrogate's Court Section, provides forms, instructions, and court locations - New York State Bar Association offers public information, lawyer referral services, and helpful guides - Local county Surrogate's Court offices for procedural details and support - Legal aid organizations and pro bono resources for those who cannot afford private counsel - Community and senior centers may offer free estate planning and probate workshops
If you are facing the probate process in New York, start by gathering all available documents related to the decedent's assets, debts, and any existing will or trust documentation. Contact the Surrogate's Court in the decedent's county of residence for information about required forms and initial steps. Consider consulting with a qualified probate attorney, especially if the estate is large, complex, or if you anticipate conflicts among heirs or creditors. An attorney can provide tailored advice and help navigate the legal requirements with confidence and care. If you need assistance finding an attorney, reach out to the New York State Bar Association or your local Surrogate's Court for recommendations.
