New York Probate Court
The probate court in New York, called the Surrogate’s Court, is a system of specialized courts that is responsible for handling a wide range of cases related to property and debts of deceased individuals as well as the property and welfare of individuals incapable of caring for themselves. This means that probate courts have jurisdiction over the administration of the estates of the deceased, regardless of whether or not they left a will, the distribution of assets of the deceased, awarding and supervision of guardianships, and handling adoptions. Because of the sensitive nature of the cases handled by the Surrogate’s Court, it is important that your interests are represented by a skilled New York probate court lawyer at the Law Offices of Stephen Bilkis & Associate who has both experience and compassion.New York Surrogate’s Court system
In New York there are separate Surrogate’s Courts in each county. Surrogate’s Court judges are referred to as Surrogates. They only preside over cases over which the Surrogate’s Court has jurisdiction such as probate and estate administration cases, trust matter, guardianships, adoptions and kinship hearings. The Surrogate’s Court does not preside over criminal cases, personal injury cases, commercial litigation, or other types of cases.
There are Surrogate's Courts throughout New York in each of the various counties. For example, the Manhattan Surrogate's Court is located in the downtown area near City Hall, while for Brooklyn or Kings County, the Surrogate's Court is located in the same building as the County Supreme Court.Types of Surrogate’s Court cases
- Probate. When a person passes away, his (or her) affairs must be settled and property distributed to others based on the terms of his will, if any. To initiate the process, the executor or another interested party must filed the will with the Surrogate’s Court and file a petition requesting that the court admit the will to probate. The petition must be filed in the county in which the decedent was domiciled at the time of his death. The court will review the will and make a decision as to whether or not it is valid. If it is, the court will admit it to probate. If not, the court will deny probate. Once a petition is filed, if an interested party such as a beneficiary or legal heir believes that the will is not valid, he has the legal right to object to probate. This is referred to as a will contest. The Surrogate’s Court must listen to objections. As an experienced New York probate court lawyer will explain, will contests must be based on valid legal grounds such as lack of testamentary capacity, undue influence, or fraud. If the objectant proves his case that the will is invalid, then the court will have no choice but to deny probate and proceed as if that will did not exist. On the other hand, if the court concludes that the will is valid, it will admit the will to probate, and the settling of the estate will move forward.
- Administration. Another department of the Surrogate’s Court handles administration matters. Administration is the process of settling an estate when the decedent died without a will. Because there is no executor named in a will, the Surrogate’s Court must appoint an administrator. The Surrogate’s Court will only appoint someone who is both eligible and qualified. To be eligible the petitioner must have some relationship to the estate such as being the surviving spouse of the decedent or a child. The person must also be at least 18 years old, must not be a convicted felon, must not be incompetent, must not have a substance abuse problem, and must not be otherwise unfit for the job. Once the administrator is appointed by the Surrogate’s Court, he (or she) will be issued letters of administration. The administrator then has the legal authority to go about the activities required to wind up the affairs of the decedent and distribute his assets. This does not mean that the Surrogate’s Court judge is no longer involved. For example, as an experienced New York probate court lawyer will explain, the court must sign an order before the estate can be closed and assets distributed. The judge will also be involved if there are any disputes along the way.
- Accounting. At the end of the administration process—whether or not there is a will, the executor or estate administrator typically provides the beneficiaries with an informal accounting. The accounting would include a list of the assets collected, a list of the income received, and list of the expenses paid. If the beneficiaries refuse to sign off on the accounting, a formal accounting procedure must be filed with the Surrogate’s Court. A formal accounting can be costly and time-consuming. If the executor or estate administrator refuses to file a formal accounting, the Surrogates’ Court can compel him (or her) to do so. Failure of the executor or administrator to file an accounting pursuant to an order for the Surrogate’s Court my result in the person’s authority being suspended. Upon approval of the accounting, the executor or administration is typically discharged from further liability and any assets that remain in the estate can be distributed.
- Guardianships. If a person cannot take care of himself (or herself), it may be necessary for the Surrogate’s Court to order that he be placed in a guardianship. A guardianship is a situation where one person would be responsible for making important decisions for the other person. The person who has a guardian is referred to as a ward. While we never expect that there will come a time when we or our loved ones will not be able to manage our own affairs, unforeseen situations like health crises or catastrophic accidents do happen. The Surrogate’s Court has jurisdiction over guardianship cases related to minors as well as older individuals who are mentally incompetent. In New York, a person under the age of 18 is a minor. The jurisdiction is concurrent with Family Court. There are two types of guardians: guardian of the person and guardian of the property or estate of the minor. As an experienced probate court attorney in New York will explain, one person can fill both roles, or different people can be appointed.
While the appointment of a guardian is the hands of the Surrogate’s Court, individuals can make it known in advance who they would prefer to serve as guardian. One way to do this is to nominate in your will the guardian for your children should something happen to you while they are still minors. For example, the parents of 13 year old Rudy and 16 year old Harvey were killed in a car accident. Their substantial estate was left to Zach and Harvey. In their wills, the parents stated that the wanted a close family friend, Judy, to serve as the children’s guardian. The Surrogate’s Court considered the parent’s wishes and appointed Judy as both the guardian of the person and estate of both Zach and Harvey. Another way to select a guardian in advance is through an advance health care directive. With an advance directive you can name someone to serve as your health care agent and your power of attorney for finances, giving that person or persons the authority to make heath care or financial decisions for your should you become mentally incapacitated.
- Miscellaneous issues. Other matters that are handled by the Surrogate’s Court include adoption matter, kinship hearings, fiduciary litigation, getting into a safe deposit box, and trust construction.
When a case ends up in the Surrogate’s Court, it is typically due to an emotional event. To ensure that your interests are protected, it is important that you are represented by someone who not only has significant experience representing clients in matters before the New York Surrogate’s Court, but also by someone who will handle your case with compassion and understanding. The attorneys at the Law Offices of Stephen Bilkis & Associates have the experience, skill, and resources to protect your legal rights in a wide range of matters before the New York Surrogate’s Court including the probate of wills, administration of estates, trust proceedings, guardianship proceedings, will contests, trust contests, and estate litigation. Contact a probate court attorney serving New York in our office at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Westchester County, Suffolk County, Nassau County, Brooklyn, Bronx, Staten Island, Queens, and Manhattan.