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Surrogate’s Court Procedure Act § 1409: Notice of Probate

Probate is the process during which the will of a decedent is proved, allowing the process of the administration of the decedent’s estate by the executor to move forward. While the activities involved in probate administration are performed by the executor named the will, the process is overseen by the probate court, which in New York is called the Surrogate’s Court. To ensure that the legal rights of family members and others who may have an interest in the decedent’s estate are protected, New York established procedures related to the probate process. Under section 1409 of Surrogate’s Court Procedure Act, notice of probate, before the administration process can move forward, a notice must be filed with the court. Whether you are a fiduciary, beneficiary, or heir, in order to ensure that the procedural requirements of New York’s Surrogate’s Court are followed and to ensure that your legal rights are protected, contact an experienced New York probate attorney at the Law Offices of Stephen Bilkis & Associates.

Related statutory provisions
  1. Proceeding to compel production of will: Surrogate’s Court Procedure Act, § 1401
  2. Who may propound will;  contents of petition;  direction of court: Surrogate’s Court Procedure Act, § 1402
  3. Witnesses to be examined;  proof required: Surrogate’s Court Procedure Act, § 1404
Requirements of notice of probate

In order for an executor to have the legal authority to act on behalf of an estate, the Surrogate’s Court must issue him or her “letters.” Letters is a type of court order that grants the executor authority to wind up a decedent’s affairs and perform transactions on behalf of the estate such as opening a bank account and selling estate property. Under New York Surrogate’s Court Procedure Act § 1409, Notice of probate, before the Surrogate’s Court will issue letters, a notice must be filed with the following information:

  • Name of the testator
  • Name and address of the proponent
  • That the will has been offered for probate
  • Name and post office address of each person named in the petition for probate who has not been served. The notice must state whether each person is a heir, beneficiary, guardian, or fiduciary.
  • Name and post office address of the attorney general of the New York attorney general if the will contains a charitable bequest to an unnamed organization or that is an unspecified amount.

As a probate attorney in New York will explain, the statute also requires the filing of an affidavit as proof that notice was mailed to each person.

Steps in probate administration

Once the decedent’s will is filled with the appropriate New York Surrogate’s Court, notice is given, and letters are issued, the steps required for the administration of the decedent’s estate include:

  • Inventory estate assets. Inventorying the assets includes identifying all assets that are part of the decedent’s probate estate, determining their value, and safeguarding them.
  • Pay estate debts. In addition to ensuring that a decedent’s assets are transferred to the appropriate beneficiaries, the Surrogate’s Court is also concerned about ensuring that the decedent’s creditors are paid. In fact, creditors must be paid before beneficiaries receive their distributions. Creditors include debts owed by the decedent at the time of his or her death such as credit card bills and car notes. In addition, individuals and businesses may file claims against the estate. The executor has the duty to defend the estate against claims. He or she also has the duty to pay valid claims from estate assets.
  • Distribute estate property. As an experienced New York probate attorney will explain, after debts are paid, the executor must distribute the assets that remain in the estate to the beneficiaries named in the decedent’s will.

All of the executor’s activities are overseen by the Surrogate’s Court judge and must be completed in a manner that is consistent with court procedures and New York estate law.

Surrogate’s Court Procedure Act § 1409. Notice of probate
  1. Before letters are issued there shall be filed in the court a notice entitled in the proceeding stating the name of the testator, the name and address of the proponent, and that the will of the testator has been offered for probate or probated, as the case may be.  The notice shall further set forth the name and post-office address of each person named or referred to in the petition who has not been served or has not appeared or waived service of process and shall state whether such person is named or referred to in the will as legatee, devisee, trustee, guardian or substitute or successor executor, trustee or guardian.  The notice shall further set forth the name and post-office address of the attorney general of the state of New York if the will that has been offered for probate contains a charitable bequest which is either to an unnamed charitable organization or is in an unspecified amount, including but not limited to, a bequest of all or part of the residuary estate.
    1. Where by the terms of the will an interest in a trust or other fund or property has been limited in any contingency to the persons who shall compose a certain class upon the happening of a future event it shall be sufficient to name only the persons in being at the death of the decedent who would constitute the class if such event had happened immediately before the date of such notice, and who have not been served or appeared or waived service of process.
    2. Where by the terms of the will an interest in a trust or other fund or property has been limited to a person who is named in such notice or who has been served or has appeared or waived notice of process, and has been further limited upon the happening of a future event to a class of persons described in terms of their relationship to such person it shall not be necessary to name such class of persons.
  2. There shall be filed with the notice proof by affidavit of the mailing of a copy thereof to each of the persons required by the preceding subdivision to be named in such notice, and if any person is an infant or an incompetent, of the mailing of a copy thereof to the person or persons upon whom personal service of process is required to be made with respect to the infant or incompetent.  When it appears by the petition for probate that the name or address of any person referred to in this section is unknown mailing to such person of the notice herein described shall not be required.
  3. Upon the probate of an estate and distribution of its assets, if any, under this chapter, if an undistributed asset is subsequently found by the estate, the surrogate's court that granted such probate petition shall maintain jurisdiction and shall not require any additional service of the notice required by this section to be served again by the estate, unless such previously undiscovered asset has an estimated value of more than five thousand dollars or it has been more than seven years since the distribution of the assets pursuant to the original probate.
Contact the Law Offices of Stephen Bilkis & Associates

Probate comes at an emotional and difficult time, making what is often a complicated process even more challenging. With over two decades of experience, the probate attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have the skill, resources, and compassion to help you through the legal complexities of probate. If you have questions or concerns related to the requirements of New York SPCA section 1409, notice of probate, or any other estate matter, contact one of our attorneys 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: Bronx, Brooklyn, Manhattan, Nassau County, Queens, Long Island, Staten Island, Suffolk County, and Westchester County.

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