Q. WHAT IS PROBATE?
A. Probate is the legal process that allows the court to prove or disprove the decedent's last will and testament, heirs to contest the will and the executor of the estate to be named and granted authority to act on behalf of the estate in estate administration.
Q. HOW DOES PROBATE START?
A. In New York, the probate process commences when a petition and original last will and testament are submitted to the Surrogate's Court in the county where the decedent lived. The petition provides the court with the necessary information to move forward with validating the will and appointing the executor. The petition informs the court about the decedent's death, the executor, the beneficiaries named in the will (as well as heirs that would inherit if there was not a will - if different) and the estimated value of property and assets passing under the will.
Q. HOW IS A WILL VALIDATED BY THE COURT?
A. All heirs are notified of the decedent's death and the initiation of the probate process. Before the will is validated by the court, the judge (the Surrogate) must be satisfied that there are not objections to the will.
The executor of the estate obtains signed waivers from each heir stating they waive the right to object to the will. The executor notifies heirs who do not sign the waiver of the required time and date to appear in court to make their objections. Any heirs who do not appear at the required time will be presumed by the court to have waived their right to contest the will. If there are no objections and if the will adheres to New York requirements, the court will validate the will.
Q. WHAT IF THE WILL IS CONTESTED?
A. Any heirs that do not sign the waiver and appear in court at the required time may raise their objections to the validity of the will. In a separate hearing, the court will render a decision to either uphold the current will, revert to a previous will or reject a codicil (amendment) to the will or reject the will in its entirety.
Q. WHAT IF THE WILL IS REJECTED?
A. If the will is rejected, New York interstate laws will determine how assets will be distributed to the beneficiaries — as if there was never a will.
Q. HOW LONG DOES PROBATE TAKE?
A. Many factors impact the length of the probate process, such as county backlog of probate cases to be heard, time to locate and notify all heirs, and whether or not there are objections to the will. The process will take much longer if there are objections to the will or to the appointment of the executor.
Q. WHEN IS PROBATE COMPLETE?
A. Once the executor has officially been appointed by the court to act on behalf of the estate, the executor is given documentation as proof of such authority. This documentation will be necessary to collect the decedent's assets, manage bank accounts, etc. This marks the end of probate and the beginning of estate administration.
Q. WHAT IS ESTATE ADMINISTRATION?
A. Estate administration is a much more lengthy process that involves locating and collecting all of the decedent's assets, reviewing and paying valid debts and claims against the estate, filing tax returns and paying applicable taxes, making distributions to beneficiaries from remaining assets, filing a final accounting of the estate and closing the estate. Learn more about estate administration in New York.