Probate FAQ

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 testator.

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 interested parties.

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 will?
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 I do?
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 inherit?
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 1041.

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 known.

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 bills.

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 Beneficiary Agreement.

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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