After a person dies, the beneficiary who inherits their assets is determined by whether that person wrote a will, whether the will is legally sufficient, who the living relatives are and their relationship to the person who died. The person who passed may have created the will on their own or when they engaged in estate planning with an attorney. The person who died is called the decedent. Family members who stand to inherit from a will by law are called distributees or beneficiaries.
Surrogate’s Court and Probate
In New York State, a will must be filed in Surrogate’s Court and admitted, or approved, for probate. Probate is the process of proving that the will is valid, or legally acceptable. The proponent of the will must prove to the satisfaction of the court that a document is the last will and testament of the person who died. The judge in Surrogate’s Court is called the Surrogate.
When a judge probates a will, they make sure the will was properly executed by the decedent and the witnesses, that the decedent was of sound mind when they signed the will, and that the decedent was not unduly influenced to make the will. After the judge finds the will legally acceptable, they appoint the executor named in the will. The legal documents that authorize a person to be an executor are called letters testamentary.
Documents to File with the Surrogate's Court
The executor distributes the assets of the estate under the supervision of the Surrogate’s Court. Certain assets, like the monies from an insurance policy, retirement accounts like a 401k and an IRA, as well as other types of accounts with a named beneficiary are not subject to probate.
The executor must file the original will and a certified death certificate, along with a form called a probate petition and other supporting documents. The probate petition contains the date of death, beneficiaries named in the will, beneficiaries if the will is invalid, and an estimate of the estate’s value. The executor files the documents in the Surrogate’s Court in the county where the deceased person died and had established their primary residence.
The distributees or beneficiaries must be listed in the probate petition. The distributees must be served with a notice called a citation. A distributee can sign a waiver to give up their rights. They can consent to the appointment of the executor or come to court to disagree with the appointment. Beneficiaries who inherit property under the will must be notified of the probate proceeding. The filing fee for probate is based on the dollar value of the estate.
Estate Administration by the Executor
An executor is paid for their work to distribute the property in the estate. Their commission is based on the value of the estate. The tasks an executor typically performs include paying the decedent’s bills and taxes and collecting debts owed to the estate.
The executor must also invest and manage the decedent’s assets during the probate proceeding. Further, they must locate and inventory all of the decedent’s property and transfer it to the estate. The final step involves distributing the entire estate at the end of probate.
Who Serves as Executor?
An executor nominated in a will may not be able to serve. This is because an executor is considered a fiduciary, a person who acts for the benefit of another, putting the other party’s interest before their own. According to the Surrogate’s Court Procedure Act, a fiduciary cannot be under the age of 18, incompetent, a foreign citizen or a person who does not live in the U.S., or a person convicted of a felony or a crime in another state that would be a felony under New York law.
The court may also declare that a person cannot be an executor if they do not possess qualifications required for a fiduciary because they abuse substances, are dishonest, improvident, lack understanding or are otherwise unfit for the execution of the office. The court may declare a person ineligible to act as an executor if that person is unable to read and write the English language.
Intestate Succession in the State of New York
When a decedent dies without a will (known as intestacy), a potential beneficiary should file an administration proceeding in Surrogate's Court. The group of people who inherit the estate are called “heirs at law.” In an administration proceeding, the Surrogate’s Court gives out letters of administration to a qualified distributee, or heir, of the decedent.
These letters appoint the heir and give them the authority to gather and give out the decedent’s property. If the decedent’s only asset is real property, it may not be necessary to file an administration proceeding. If there was joint ownership of real property, the property may pass to the new owners without going through probate. If the decedent did not add another owner to the deed before death, then the real property must go through probate to pass to heirs.
Probate Process for a Small Estate
If the decedent had less than $50,000 of personal property and died with or without a will, then a beneficiary can file a small estate proceeding. This type of proceeding is also called a voluntary administration proceeding. The New York State Bar has an assistance program for individuals who need help with a voluntary administration proceeding.
Personal property includes bank and retirement accounts, cars, stocks, bonds and anything of value that has the decedent’s name on it. Personal property does not include real property like houses, land or buildings.
Order of Distribution for a New York Estate
When a person dies without a will, their property is distributed according to New York's laws of intestacy. If the decedent has a surviving spouse and no surviving children, the spouse inherits all of the estate. If a decedent has children but no spouse, the children inherit all of the estate equally.
If a decedent has a spouse and children, the spouse inherits the first $50,000 of the estate, plus half of the balance. The children inherit the remainder of the property equally.
If a decedent has parents but no spouse and no children, the parents inherit all of the estate. If a decedent has siblings but no spouse, children or parents, the siblings inherit all of the estate. When a child of the decedent dies before the decedent, and the child had children, the grandchildren inherit in place of the child. If the decedent had no family, the property in their estate goes to New York state.
Sound Mind and Memory
A will must be created by a person 18 or over who is of "sound mind and memory." Having a sound mind and memory is called having legal capacity. The sound mind and memory test requires only a lucid moment in which the testator, or person who creates the will, understands their assets and the objects of their bounty.
The objects are the individuals who would inherit if there was no will. The testator must be aware of what they are doing at the time they create the will, not at a later point.
Requirements for a Will
A will must be in writing and signed by the testator at the end of the document. The testator must affix their signature to the will in the presence of each of the attesting witnesses, or be acknowledged by the testator to each of the witnesses to have been affixed by the testator or at the testator’s direction. There must be at least two attesting witnesses who do not receive property under the will.
When the testator signs the will, they must state to the witnesses that they are doing so. The witnesses must confirm the testator’s signature. At their request, the witnesses must sign their names and write their addresses at the end of the will.
Tips for Creating a Will
A testator should keep their will in a safe place. If a lawyer prepared the will for them, the testator should talk with the lawyer about where the original will is stored. In certain counties, the Surrogate’s Court has a vault. There wills are stored until a person dies. Wills are typically confidential until a person passes. After a will is admitted to probate or a voluntary administration, it becomes a public document.
A testator should not remove staples from a will when making copies. Any alterations to a will could be a reason to invalidate it. If a testator removes staples from the will, they should tell the court in a signed and notarized affidavit why the staples were removed.
The affidavit should also provide where the will has been kept since it was executed. Further, the affidavit should state that the testator believes no substitutions or changes have been made since the will’s execution.
What Is a Codicil?
A testator can change their will by creating a codicil. This document is an addition or a change to the will, but it does not revoke the will. If a testator wants to revoke their will, they can make a new will, write a document that clearly shows they want to revoke their will, or physically destroy the will.
Burning, tearing, cutting or otherwise mutilating a will causes it to be revoked. It can be a concern if there are multiple wills in existence when a person passes.
No Holographic Wills
New York laws do not recognize holographic wills, handwritten wills not executed and attested to under New York laws. The state laws also do not recognize verbal wills. The exception is when such a will is made by a testator in active military service or a mariner at sea at the time they made the will.
Rules for Out-of-State Wills
New York laws recognize an out-of-state or foreign will if the will was valid under the laws of the state or country where it was executed. The will must be in writing and signed by the testator. A will may be admissible to probate in New York if it disposes of personal property situated anywhere and/or real property situated in New York.
Objections to a Will
An individual who wants to contest a will should file a petition with the appropriate Surrogate’s Court and ask for a hearing. The person contesting the will is required to appear in court for the hearing. If they do not show up, they give up their right to contest the will. A person who has a legal right to inherit and may have been omitted from a will is a likely candidate to contest a will.
A will may be challenged on the following bases: the testator’s lack of mental capacity at the time they drafted the will; lack of validity, where the testator did not follow all the proper steps to create the will, such as the signature requirement; and undue influence, where there is a claim that a testator made the will because they were influenced by another party in a way that conflicts with the testator’s wishes.
A person may also contest a will because they believe the testator was under duress or extreme pressure to bestow their property in a way that conflicts with the testator’s wishes or fraud, or when the testator only made the will because a party lied to them. When a will contest is successful, a judge may rule that all or part of a will is invalid. The court may then divide the decedent’s property and money as it sees fit. The court’s acts may be in line with New York laws on intestacy.
- New York Courts: Probate
- New York State Bar Association: Estates and Surrogate’s Court Assistance
- New York City Bar Legal Referral Service: Wills, Temporary Remote Witnessing and Remote Notarization Allowed
- New York State Bar Association: Basics of Will Drafting
- New York Courts: Administration
- New York Courts: Last Will and Testament
- New York Courts: Intestacy, When There Is No Will
- Surrogate's Court Procedure Act: Section 707, Eligibility to receive letters
- Estates, Powers & Trusts Section 3-5.1 Formal Validity, Intrinsic Validity, Effect, Interpretation
- New York City Bar Legal Referral Service: Will Contests
- New York City Bar Legal Referral Service: How to Change or Revoke Your Will
- New York Estates, Powers, and Trusts Law: Section 6-2.2, When estate is in common, in joint tenancy or by the entirety
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.