Law Office of Jason D Jones, P.C.

FAQs - Probate and Estate Administration

FAQs- Probate and Estate Administration

Probate

How long does the Probate proceeding take and how much does it cost?

  • The length of the probate proceeding depends on many factors, such as sending notices to all "interested persons" like beneficiaries and collecting affidavits that need to be submitted with the Probate Petition.  To complicate matters, each court varies in what they require for a complete petition.  Filings fees for the probate petition depend upon the value of the estate. 

What are examples of non-probate assets?

  • Non-probate assets include but are not limited to joint interests in real property (land), life insurance and financial institution accounts where beneficiaries are listed on the financial institution forms.  

Who is eligible to probate a Will?

  • A Will may be probated by a legatee, a devisee, a fiduciary or a guardian.  A creditor of the estate and any other person with a pecuniary interest in the Estate may also do so.  Most commonly, the Executor who is nominated by the Will maker is selected to probate the Will.  An infant (one under the age of 18), incompetents, convicted felons, or those who are otherwise deemed to be unfit may not serve as fiduciaries, which includes Executors.  The Executor will be required to file an oath and, in some cases, to post a bond.  Once an Executor is appointed, such appointment may not be changed until he or she is formally discharged by the Surrogate.

My family member passed away and I can not locate the Will original.  What should I do?

  • If you have a copy of the original Will, then the Will proponent or the Executor must prove that the Will was duly executed, prove all provisions of the Will distinctly and clearly, and prove that the Will was not revoked by ripping, burning or otherwise destroying it.  

How do I track down witnesses to a Will?

  • If a self-proving affidavit is attached to the Will then you do not need to track down witnesses.  This is because the self-proving Affidavit memorializes that the witnesses to a Will have sweared under oath that they have signed and witnessed the last Will and their signatures on the Affidavit are notarized.  If there is no self-proving affidavit, then the witnesses must be tracked down and they will need to sign witness affidavits.  

Under which circumstances will self proving affidavits be insufficient to prove witness signatures?

  • In New York, self proving affidavits will be insufficient if there are changes deletions or mutilations, if the testator was illiterate or could not read English and no translator was provided at the Will signing, more than one Will was executed, if a copy rather than the original was offered to the Surrogate, if the Will was executed withing ninety (90) days of the death of the testator, if the attorney/drafter was a beneficiary or had a confidential relationship with the Will maker, if the Will maker signed with a mark rather than a signature or if an interested party objects to the Will. 

What is the homestead exemption?

  • The homestead exemption relates to personal property that is considered exempt from probate and a surviving spouse's right of election.  Such items include, but are not limited to, cash up to the amount of $25,000, household items up to $22,500 and a motor vehicle up to $25,000.  Apart from the motor vehicle, items not owned at death are not included.

Who must waive or be cited to the probate of a Will?

  • Distributees, the primary executor, a beneficiary, executor, trustee, or guardian caring for one whose interests might be adversely affected, alleged decedents, Commissioner of Dept. of Taxation and Finance if the decedent was not domiciled in New York, the Attorney General if there are no distributees or if the proponent does not know if they exist, a beneficiary who would be adversely affected by a trust power of appointment or if the Will proponent is aware of a person who would have had a right or an interest all must waive process or be cited. 

Who must receive notice of probate by the Will proponent?

  • All persons who are named in a Will or Codicil but are not entitled to service of process must receive notice of probate.

What are my duties as an Executor of a Will?

  • Usually the Executor, or the estate attorney, files a Petition for Letters Testamentary.  Once probate is completed, the Surrogate issues Letters Testamentary to the Executor.  The Executor then orders Certificates of Letters Testamentary and collects and distribute assets pursuant to the Will's terms.  Such duties include accepting and acquiring property, investing and reinvesting assets, keeping estate property insured, gathering property, collecting rents, making estate repairs, renewing or foreclosing mortgages and working with banks to hold securities.  The Executor must pay all legal debts prior to distributing assets or he or she might be exposed to personal liability.  The Executor may not start to distribute assets before seven months have passed so that creditors may submit claims to the estate. 

Which claims must an Executor pay first on an Estate, provided that the estate is insolvent to pay all claims?

  • The Executor must pay administrative expenses and funeral expenses, in that order.  Administrative expenses must be reasonable and brokers' commissions on sale of property.  A surviving spouse is obligated to pay for funeral expenses but may be reimbursed. 

I was named Executor of a Will but do not wish to serve.  Is my appointment required?

  • You are not required to serve as an Executor under a Will.   The Surrogate's Court, however, normally requests a formal renunciation of an Executor.  If you have accepted your appointment as Executor, however, then you must have a valid reason for not fulfilling your duties if you want to be discharged.  Commonly accepted reasons are that the Executor is under old age or other impediment that would make it impracticable to serve as Executor.

I'm in possession of a valid Will where no Executor has been appointed or the Executor has been appointed but has died or ceased to serve.  What should I do in this case?

  • Present the original to the Surrogate's Court under a Administration CTA proceeding.  The Surrogate will issue Letters of Administration CTA (cum testamento annexo) and will proceed to appoint an Administrator who will thereafter execute the terms of the Will similar to how an Executor would.  The Surrogate will select the Administrator CTA first from the sole beneficiary listed in the Will, then to one or more residuary beneficiaries then to one or more interested persons. 

How do preliminary letters testamentary differ from letters testamentary?

  • Preliminary letters testamentary are issued by the Surrogate when there is a delay in obtaining letters testamentary.  This might occur due to a Will contest or if there are distributees who can not be contacted.  Preliminary letters allow the appointee to collect assets, pay estate and income taxes, pay estate debts and to sell real property that has not been specifically gifted to a beneficiary.  Preliminary letters do not permit an executor to distribute assets or to pay out dispositions or to wind up the estate.  

For how long are letters testamentary or administration valid?

  • Letters testamentary or administration are valid from a period of six (6) months from the issuance date, whereupon they will need to be renewed.

What are limited letters testamentary?

  • Limited letters testamentary are usually obtained for a specific purpose such as filing a wrongful death suit.

What is ancillary probate?

  • Ancillary probate deals with out of state property that is owned by a decedent and how it is managed and liquidated.  It is appropriate for use when an out of state person leaves real or personal property that needs to be probated subject to the state where it is located.  For example, real property or land must be probated in the jurisdiction where it is located.  The actual probate proceeding must be commenced prior to moving forward with the ancillary probate proceeding.

I have a Will probated elsewhere but wish to have it probated in New York.  May I do so?

  • Normally one would proceed with an ancillary probate proceeding but the Will may be probated in New York if ancillary probate would be impossible, unduly expensive or inconvenient. 

Administration

What is an Administration Proceeding?

  • An administration proceeding is used by the Surrogate's Court when the decedent died intestate (without a Will) or partially intestate.  Such proceedings approximate how a reasonable person would have bequeathed or devised property to family or loved ones.  

What is partial intestacy?

  • Partial intestacy results when someone dies leaving a valid Will only disposes of a part of the estate.  Examples include when a gift in a Will is invalid or if its terms do not cover all of the property owned by the decedent at the date of death.  

Which persons may inherit under an Administration Proceeding in New York?

  • Persons who may inherit under an Administration Proceeding in New York are called distributees.  Who gets what is determined by who the living relatives are and their relationship to the decedent.  If there is a spouse but no children, then the spouse inherits everything.  If there are children but no spouse, then the children inherit everything.  If there is a spouse and children, then the spouse inherits the first $50,000 plus one half of the balance, with the children inheriting what remains.  If there are only parents, then the decedent's parents will inherit everything.  If there are only siblings, then they will inherit everything.  If there is absolutely no one to claim the decedent's property, then it will be held by a Public Administrator for a certain period of time before it escheats, or is transferred to New York state. 

What is the most remote degree of relation I may have to the decedent to be entitled to inherit from his or her estate in New York?

  • The most remote degree is great-grandchildren of the grandparents, or first cousins once removed.

Who can commence petition the Surrogate's Court for an Administration Proceeding?

  • Because an Administration proceeding only decides who can administer an estate, anyone with an pecuniary interest may petition.  These people include but are not limited to a public administrator, a distributee or a person interested in a cause of action where the decedent would have been a party.  

What are some common reasons for commencing an Administration Proceeding?

  • Common reasons include when there is stock to be transferred, debts to be paid, deeds to be executed, or distributions to be made from an estate and in order to do so, an Administrator must be appointed.

Do Administrators usually need to file a bond?

  • Administrators, in contrast to most Executors who are usually not required to post a bond, as per the Will terms, normally need to post a bond prior to receiving the proceeds of a sale, such as the sale of real estate.  The amount of the bond will be fixed by the personal property in the intestate estate plus eighteen (18) months gross rents from real property.

What is an Administration DBN proceeding?

  • An administration de bonis non or DBN proceeding allows a fiduciary to wind up the estate of a sole distributee who has died or to appoint the fiduciary as the administrator of the original decedent's estate if more work needs to be done.