Probate is the legal process during which a court approves the terms of a deceased person's will regarding property and other assets, collectively called the “estate.” After payment of the funeral expenses, administration expenses, and any debts the deceased person owed, the remainder of the estate is distributed to the beneficiaries according to the will. In New York, probate proceedings occur in the Surrogate’s Court of the county in which the decedent was living at the time of death.
The New York probate process generally follows the steps below:
1. Probate petition.
The person named executor in the will files a probate petition along with the original will in the proper Surrogate's Court. The petition lists the date of death, beneficiaries according to the will, heirs-at-law who would inherit if the will were found to be invalid, and an estimated value of the estate. The petitioner must provide notice to all of the decedent's next of kin (even if they are not included in the will) and to the will beneficiaries.
2. Appointment of executor.
Once the court is convinced that the will is valid, the judge will appoint the executor and grant them “letters testamentary,” giving them the legal authority to begin carrying out their duties as executor. Under the law, executors are entitled to commissions, unless they waive them.
3. Administration and closing out of the estate.
A probate proceeding in New York can take a few months or a few years. It depends on how large the estate is and how complex it is in terms of distributions for various family members, friends or charities. The executor can then administer the estate, which means they have to inventory and transfer the decedent's assets to a newly created estate account, pay off debts and income taxes owed by the decedent, manage assets during the probate proceeding, and distribute the estate property to the appropriate beneficiaries. To close out the estate, the executor must prepare a final accounting, which the heirs must agree is accurate.
Small Estates in New York
Note that in New York, estates valued at $50,000 or less, excluding exempt property such as insurance policy proceeds and certain retirement accounts, for which the decedent had a will qualify for an expedited probate process in a “small estate proceeding.” In this process, the court appoints a voluntary administrator, and the process can move along fairly quickly, even reaching completion in a matter of weeks.