Information and advice on submitting a New York Will to probate.
If you are named as an executor in a testator’s Will, you have certain rights and duties which must be complied with. Once the testator dies, what is your role and how do you go about probating the Will? Here are some frequently asked questions to help executors with probate basics:
What is probate?
This is the process whereby the Will is proved to the court to be the testator’s valid Last Will and Testament.
Where do I probate the Will?
A New York Will must be probated by the surrogate’s court. You must file the petition for probate in the county where the testator last resided prior to his/her death.
Do I need to appoint an attorney?
There is no obligation to have an attorney. However, probate matters, whilst they may appear relatively simple to start with, can turn out to be quite complex. It is advisable to have guidance from a lawyer.
I’ve decided to proceed without a lawyer, where do I start?
You should start by contacting the appropriate surrogate’s court. You can either telephone the relevant county court or browse their website to find the necessary forms for probating a New York Will. Usually you will be provided with a petition for probate form and a probate proceeding checklist.
What documents must be filed?
You will need to file the petition for probate (which you can obtain from the court) together with the original Will, a certified copy of the death certificate and other supporting documents.
Where do I get the death certificate?
The funeral director will usually provide you with several originals. Alternatively, you may contact the New York state department of health.
I don’t have the original Will
If there is a written Will in existence, the court cannot issue probate without the original document. If you know who has possession of the document, ask them to deliver it to yourself or to the surrogate’s court.
If they fail produce the instrument, you may ask the court for an order that the person be required to attend court and be examined. If the court finds that the person has the document in their possession then it may order that the original be filed with the court.
If the New York Will is lost or destroyed, it may still be admitted to probate using the probate petition together with affidavits from two witnesses.
How do I become formally appointed?
If you are named as executor in the Will, then you may elect to have ‘letters testamentary’ issued as part of the petition for probate. Just make the selection on the petition form. Letters testamentary is the formal document appointing the executor.
What is a small estate?
The probate court offers a simplified probate procedure where the estate consists of personal property under a certain amount. The cut off depends on when the testator died. For deaths occurring prior to January 1, 2009 the limit is $20,000. The cap is increased to $30,000 for testators dying on or after January 1, 2009.
The simplified program enables you to ask the court for permission to distribute assets to beneficiaries according to the New York Will. The process can also be used where the testator did not leave a Will. You will need to file a small estate affidavit (also called an affidavit of voluntary administration). The filing fee is $1.
Do I have to act?
No. You may renounce your position as executor. The successor executor is next in line to act. If there is no successor named, then the court will appoint an administrator in accordance with the intestacy legislation.
The persons who have priority to this position include beneficiaries under the Will, the public administrator or treasurer and other persons who have an interest in the estate. It may end up being a stranger, as long as the court deems they are fit to act.
Having a death in the family is certainly a difficult time for all parties concerned. As a fiduciary, the role of the executor is to act impartially and in the best interests of the estate. The process becomes harder if you don’t have an attorney acting for you, especially if there are disputes and bitterness involved. Remember, you can appoint an attorney at any stage of the proceeding.
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