New York Probate Rules

By Alexis Writing
the rules, probate, New York state

cemetary 3 image by sonya etchison from Fotolia.com

A probate is the legal process of disseminating the estate of a deceased person. The issue of inheritance and wills might seem like an uncomplicated procedure, but one might actually have to clear a number of legal hurdles when it comes to property and the transfer on ownership to the next in kin of a deceased. Each state has its own laws regulating the probate process, and in New York, a surrogate court handles probate issues. The surrogate court attests to the validity of the will and the heirs, and it interprets the instructions of the deceased regarding his estate. The laws regulating probate in New York are numerous.

Requirements for Wills

A written and notarized will is the simplest way to ensure that a person's wishes are carried out after death. The surrogate court assesses the will's validity if one exists. For a will to be valid in New York, the testator must be write and sign the will in the presence of two witnesses. The witnesses must clearly sign their names and note their addresses. Furthermore, during the process, the testator must definitively state, in the presence of the witnesses, that the paper he is signing is his will. In some cases, a will may be nuncupative (not written) or holographic (written in the handwriting of the testator, but not formally witnessed). These wills are only considered valid for active military or naval service members or for mariners at sea.

Capacity

In New York, any person over the age of 18 of sound mind and memory can make a will for the disposal of her property. Also, anyone who has the capacity to acquire and hold property can inherit property from a deceased person. If the beneficiary is incapable of receiving property by will, as in the case of an unincorporated association receiving property from a deceased person, the association has three years to become incorporated and fulfill the requirements that qualify it to acquire the bequeathed property.

Spousal Inheritance Rights

If a will was established between 1930 and 1966, the surviving spouse of the deceased person has a right to one-third of the net estate if there are children or one-half of the net estate in the absence of children. However, this spousal right may be invalid if a final judgment of divorce or annulment was granted before the death of the person, if the living spouse abandoned the deceased person, or if the living spouse refused support to the deceased even though it was the person's duty and the spouse had the ability to do so.

After 1966, the will must be followed regarding the disposal of the deceased person's property. Thus, a spouse may not receive anything if it is mandated in the will.

About the Author

Alexis Writing has many years of freelance writing experience. She has written for a variety of online destinations, including Peternity.com. She holds a Bachelor of Arts in communication from the University of Rochester.