New York Will Probate
Probate is the process for during which a last will and testament is proved. This means that the Surrogate’s Court reviews the will to determine if it is valid. In order for a will to be valid in New York, it must be executed with the formalities outlined in Estate, Powers and Trusts, section 3-2.1. If the court concludes that the will is valid, it will grant the petition to admit it to probate and issue the executor a document called “letters testamentary.” The letters testamentary are proof that the executor gives him (or her) the legal authority to take the necessary steps to administer the decedent’s estate and distribute the decedent’s probate assets to the beneficiaries named in the will. If you are an executor, beneficiary or other interested party in a probate proceeding before the New York Surrogate’s Court, contact a skilled New York will probate lawyer at the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience, we have the experience and resources to guide you through the process of probate and administration process.Requirement of probate
Probate is always required as a will always must be proved. However, probate along with formal administration is not always required. If the decedent’s estate is worth less than $30,000 and has only personal property, it may qualify for an alternative called “voluntary administration.” To learn more about the voluntary administration process, contact an experienced New York will probate lawyer.Steps in probate
Probate is initiated by filing paperwork with the Surrogate’s Court located in the county in which the decedent was domiciled at the time of his (or her) death. Typically the process is initiated by the executor who was nominated in the decedent’s will. The executor must file the will and the death certificate along with a petition for probate and the appropriate filing fee
Information that must be provided in the petition for probate include details such as the decedent’s address, national citizenship, date of death, the name and address of the executor, and the approximate value of the decedent’s estate. The executor must also list the names and addresses of those who have an interest in the will including any beneficiaries, trustees, guardians, successor executors, trustees or guardians. Each of the people named in the petition must receive notice of the petition or “citation”, if his or her address is known. The citation puts them on notice that the decedent has died and that he (or she) has some sort of interest in the estate. It will contain language that tells the parties that they should appear in the Surrogate’s Court on a particular date at a set time
The citation gives the Surrogate's Court jurisdiction over those listed in the petition. In other words, the citation gives the Surrogate's Court authority to determine the rights of those mentioned in the citation. Thus, the citation tells the beneficiaries that the executor filed a petition for probate and for letters testamentary that would give him the authority to manage the decedent's estate. If the beneficiary does not have an issue with the appointment, the distributee can sign a waiver and consent to the appointment of the executor. If the beneficiary objects to the appointment, he can come to court and file an objection.
As a skilled will probate attorney in New York will explain, providing notice to interested parties lets them know that a probate proceeding has been initiated and lets the court know who has an interest in the proceeding. As a result, any interest party who may have an objection to the will has the opportunity to file a challenge probate. If the Surrogate finds that there is sufficient evidence that the will is invalid due to lack of testamentary capacity, improper execution, undue influence, duress, fraud, or some other reason, the Surrogate will deny probate. Otherwise, the Surrogate will admit the will to probate.
There are, however, occasions when the Surrogate’s Court will revoke probate after interested parties present evidence that make the validity of the will that was admitted to probate questionable. The Surrogate’s Court did this just this in the 2018 case of the Matter of Estate of Thompson. Thompson’s will that was executed in 2016 was admitted to probate. Later on beneficiaries of a 2008 will petitioned the Surrogate’s Court asking that it vacate the probate decree so that they could contest the 2016 will. Evidence was presented that the 2016 was executed under questionable circumstances. The Surrogate’s Court vacated probate and allowed the beneficiaries of the 2008 will proceed with their challenge to the 2016 will. It is unusual for the court to revoke probate, but it will do so if feels it is necessary. To learn more about the process for vacating probate, contact an experienced New York will probate lawyer.End of probate
Probate ends when the Surrogate’s Court approves the petition for probate and issues the petitioner letters testamentary. At that point the will has been proved and the administration part of the process begins. Estate administration is the process during which the executor collects the estate assets, pays valid estate debts and expenses, files tax returns and pays taxes, and distributes assets. Some also refer to the administration part of the process as probate, while others refer to it as probate administration.Absence of a will
If a decedent passes away without a will, or if a will is invalidated, then probate is not necessary, as there is not will to prove. Instead, the Surrogate’s Court will appoint an estate administrator and that person will proceed with settling the decedent’s estate.Contact the Law Offices of Stephen Bilkis & Associates
Regardless of the size of the estate and the type of property involved, the probate of a last will and testament can get very complicated. It is imperative that your interests are represented by a will probate attorney serving the New York who understands the nuances of New York Estates, Powers and Trust Law and who has experience representing clients in matters before the New York Surrogate’s Court. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience successfully representing clients in a variety of complex probate matters and other estate-related matters. We are here to help. Contact us 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, Bronx, Westchester County, Long Island, Brooklyn, Nassau County, Queens, Staten Island, and Suffolk County.