WHAT IS PROBATE?
When someone dies leaving a Will, the legal
process that takes place is called probate.
Probate simply refers to the act of proving the
validity of the Will. A Will only needs to be
probated if the decedent died with assets valued
at $30,000 or more. Before the Will has any
legal effect, it must be admitted to probate by
the Surrogate’s Court located in the county
where the person died. In other words, the court
must make a determination that the Will is
valid. A valid Will must be properly executed
and accurately reflect the wishes of the
In order to be valid a New York will must be
signed in the presence of at least two witnesses
and each must sign in the presence of the other.
The person making the will must be competent to
do so of his or her own free will, and not under
any duress or undue influence. The probate
process is commenced by filing the original Will
and a probate petition with the court. After
jurisdiction is complete and all issues have
been addressed, the court will issue a decree
granting probate and issue Letters Testamentary
to the Executor or Executors named in the Will.
If anyone believes that the Will is not valid,
that person may start a Will contest by filing
objections to the probate.
Letters Testamentary is a document which gives
the Executor the authority to administer the
estate. The Executor will be responsible for
identifying and inventorying the decedent’s
property, having the property appraised, paying
debts and taxes and distributing the property as
the Will directs.
How long should probate take?
It is best to wait at least seven months before
closing the proceeding, because that is the
cutoff point for creditors to make claims
against the estate. This is the shortest time it
can take, but just as any lawsuit, it can takes
years if there is a disagreement among
What is the deadline to finish up probate?
Probate should be finished up within a
reasonable timeframe. However, what is
reasonable can vary depending on the complexity
of the case. Disagreements between the parties
will prolong the probate process.
What is the deadline to file a will or probate a
Although there is no deadline to file or probate
a will in New York, it should be done as soon as
possible. If the will is not filed within a
reasonable time period and a party or a creditor
will be disadvantaged as a result, the court
will penalize the will holders and credit the
disadvantaged party or creditor.
I think my relative is hiding the will. What can
In a probate proceeding, you can force a person
to produce the will.
Does the estate have to pay executors’ fees?
The executor is entitled to a fee, called a
“commission.” It is based on the value of the
estate, according to the following schedule: 5%
of the first $100,0004% of the next $200,0003%
of the next $700,0002 ½% of the next
$4,000,0002% above $5,000,000However, if the
executor also benefits under the will, it might
be a good idea to waive the commissions, to save
on income taxes.
What happens if a person mentioned in the will
is no longer living?
Most wills specify what would happen in this
event. If the will is silent on the topic, the
children of the person mentioned in the will get
the share, but only that person’s children are
the testator's grandchildren or nephews/nieces.
My father divorced his first wife, but did not
get a chance to change the will. Will she
The gift to former spouse is not valid. However,
if the spouse’s children are in the will, they
do get the gift.
I was adopted after a will was executed, and was
not mentioned in the will. Will I inherit?
Yes. The adopted child’s share comes out of the
other sibling’s share (this only works if the
child was adopted after the will was executed).
Estimated Probate Timeline
MONTH 1-3. Read the will, if there is one.
Determine who will be the personal
representative – it will either be the executor
mentioned in the will, or the person who
everyone is comfortable with. Get death
certificates. Get all the necessary waivers and
consents. File a petition with Surrogate’s Court
to start the probate process. In many
circumstances, getting appointed can take
considerably longer or not happen at all.
MONTH 3-6. After obtaining Letters of
Administration from the Court, the personal
representative begins acting. They take a
preliminary inventory of the estate and make a
preliminary list of creditors. Open and
inventory the safe deposit box. Notify all
possible creditors. Determine which creditors
are legitimate. They consult with an Accountant
regarding taxes. The Accountant will prepare
Federal Estate Tax return, Form 706. Final
income taxes also need to be filed - 1040 and
MONTH 6. Inventory of the assets needs to be
filed. Get property appraised, if needed. At
this point, the extent of the estate should be
MONTH 7-8. Decide which property should be sold
and which beneficiary gets which asset.
MONTH 8. Close out creditor claims. Provide
preliminary accounting to beneficiaries. Finish
negotiating with creditors. Pay creditor and tax
MONTH 9. This is the deadline for filing a
renunciation, if needed (consult an attorney
well in advance). File petition on final
accounting with the Surrogate’s Court. Prepare
MONTH 11 and on. Distribute assets to
beneficiaries. File Petition to be discharged as
personal representative. Close the estate.
This timeframe is approximate and not
guaranteed. The estate will take longer if
substantial or complicated property is involved,
or if there is an ongoing business. It will take
even longer if there is a disagreement.
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confidential meeting to discuss your probate
needs, contact our offices by e-mail or call (315) 451-2383.