When someone dies in the state of New York, the surrogate's court in her county of residence handles probate. The executor named in the will normally works with the court, or hires an attorney to do so on her behalf.
Filing the Will
One of the surrogate's court duties is to determine whether the will is valid under New York law. The executor files the will with the court, along with the death certificate and a petition to begin probate. The petition must include the name and residence of the deceased, the names of the heirs and the value of the estate. The executor also uses the petition to request letters testamentary — an official confirmation of her authority — from the surrogate's court. The probate petition and all other probate forms can be downloaded from the New York Courts website.
If there is no executor named in the will, or no will at all, the court usually appoints the closest living heir to administer the will. An administrator has the same power as an executor.
Submitting the paperwork requires a filing fee, based on the size of the estate. The executor can use the estate assets to pay for filing fees, legal advice and other probate expenses.
The D'Arrigo and Cote legal firm says there's no deadline for the executor to begin probate in New York. However it's best to begin promptly. If an heir or a creditor suffers financially from unreasonable delays, the court can penalize the person responsible.
Announcing the Death
Before probate proceeds any further, the executor must notify the heirs that she's filing her petition. She also must notify anyone who isn't in the will, but would inherit under New York law if the decedent had died without a will.
The notified parties can choose to contest the will. For example, if one of the heirs believes there's a more recent valid will someone is hiding, she can bring the issue before the court.
The Probate Process
It may take one to three months, and sometimes more, before the surrogate's court reviews the initial petition and appoints an executor. Once the executor receives the letters testamentary, she must inventory the estate's assets and debts, contact creditors and determine which debts are valid. She also must pay any taxes due, such as the decedent's final income tax return and New York estate tax.
Once the estate finances are clear, the executor can begin paying creditors. If there are any assets left, she distributes them according to the deceased's wishes. When the assets are gone, she files a petition with the court to end her role as executor. This can take more than a year if the estate's finances are complicated or the heirs contest the will.
Executors can use a simpler probate process if the estate meets New York requirements:
- The decedent didn't own any real estate in his own name.
- There's no wrongful death lawsuit about the decedent's passing.
- The estate is worth less than $30,000.
In the small-estate process, the executor serves as voluntary administrator and distributes the assets to the heirs in only a few months. The filing fee is only $1.
New York state executors and administrators are entitled to a fee for their work. The New York City Bar says the fee starts at 5 percent for an estate of $100,000 or less. The percentage goes down for larger estates: For amounts above $5 million it's 2 percent.