Probate Proceedings FAQ
Non-probate assets are those assets that may form part of one's overall estate but do not pass under a Will. They include, but are not limited to: jointly held real property, life insurance, retirement accounts, and accounts with a named beneficiary or a payable-on-death designation. Non-probate assets pass to designated beneficiaries via institutional forms. Non-probate assets are only brought back into one's testamentary plan if there are insufficient probate assets to satisfy a surviving spouse's required inheritance.
A Will may be probated by any “interested person”: a legatee, a devisee, a fiduciary or guardian, a creditor, or any other person with a pecuniary interest in a decedent’s estate. However, if the Will maker nominates an executor, then the court will usually uphold such nomination over other interested persons.
Exempt, or set-off, property in New York is personal property of the decedent that is not counted in calculating a decedent's estate or a spouse's right of election. Under EPTL 5-3.1 the categories and current caps are: household furniture, appliances, utensils, musical instruments, fuel, provisions and clothing up to $20,000; family bible, family pictures, books and electronic media up to $2,500; domestic and farm animals with sixty days' feed, farm machinery and one tractor and lawn tractor up to $20,000; one motor vehicle up to $25,000; and money up to $25,000, reduced by the excess value of any items taken above the other caps.
Present the original Will to the Surrogate's Court under an Administration CTA (with the Will annexed) proceeding. The Surrogate will issue Letters of Administration CTA and will appoint an Administrator who will follow the terms of the Will while administering the estate. The Surrogate will select an Administrator CTA in the following order: the sole beneficiary listed in the Will, one or more residuary beneficiaries, or one or more interested persons.
In New York, infants and incapacitated persons may not serve as Executor, nor may a person who is found to be unqualified because of substance abuse, improvidence, a want of understanding, or who is otherwise deemed unfit for the office. A felony conviction does not by itself bar a person from serving. The Surrogate may, in the Court's discretion, declare ineligible a person convicted of a felony where the crime may be adverse to the welfare of the estate. Whether the Court does so depends on the nature of the conviction and its bearing on the responsibilities of the office. Further, a person who is neither a United States citizen nor a New York domiciliary may not serve as Executor unless they serve alongside at least one co-fiduciary who is a resident of New York. A non-citizen who is domiciled in New York is not disqualified on that ground.
In most cases, the main probate proceeding must be commenced where the decedent was domiciled and then an ancillary probate proceeding must be commenced in the state where the decedent left out of state property.
A will admitted to probate becomes a public record in Surrogate's Court, generally including the names of beneficiaries and the nature of what they receive — a real concern for families with a public profile or simply a preference for privacy. Funding a revocable trust during life keeps those assets out of the probate filing entirely, since a fully funded trust passes outside probate; for assets that remain probate assets, options like sealing sensitive filings are limited and case-specific, which makes lifetime trust funding the more reliable privacy tool.