FAQ Regarding Probate

Frequently Asked Questions

1. Are handwritten Wills legal in New York State?

Handwritten Wills are called Holographic Wills.   Holographic Wills are not admissible in New York State, with one exception. Active members of the Armed Forces may prepare Holographic Wills if they are on active duty in a  combat zone.  These Wills are only valid for a limited time, to allow Armed Forces members time to execute standard Wills after they return home from combat.

2.  How do you “Probate” an Estate if the decedent did not leave a Will?

If a decedent dies without a valid Will, a family member may apply for Letters of Administration from the Surrogate’s Court.  The process may be more complicated because the Court requires an Affidavit of Heirship stating the names of all related members of the family, including all distributees of the estate.  The New York State rules of Intestate govern which family members are entitled to shares of the Estate.

3.  Does everyone need a Will?

Preparing a Will makes the most sense and ensures that the wishes of the Decedent shall be honored at death. A Will may be changed at any time while the decedent is living.  If the decedent has no property, or everything is held in Joint tenancy with the decedent spouse, he/she may not need a Will, except if they die together in a plane crash or some other catastrophic event.
Also, if the party has set up a Trust and deposits all property in the Trust, he/she may not need a Will.  Most people with Trusts do not keep all  their property in the Trust, so they still need a Will.

4.  What is the difference between a Living Will and a Last Will?

A Living Will consists of a Health Care Proxy and a Do Not Resuscitate Agreement.  A Last Will is a document which designates who will inherit your property.  Both documents are important.

5.  What are the duties of the Executor?

The Executor/Executrix is the individual designated in a Will to manage the Probate of the Estate.  Executors hire attorneys to assist them in the preparation of the Probate Petition, collect assets, pay creditors and distribute assets to Heirs and legatees.

6.  In what Court do you Probate the Estate?

Estates must be Probated in the Surrogate’s Court in the County where the decedent was domiciled at the time of his/her death.  If the decedent owned real estate in another state at the time of her/his death, it may be necessary to conduct a second Ancillary Probate in the state where the property is located.

7.  How long does the Probate process take?

The Probate process can take anywhere from three months to a year depending on the complexity of the Estate, the cooperation of interested parties or distributees and legatees of the Estate, and the speed in which the Court Clerks and the Judge signs the Order issuing the Letters Testamentary.  It definitely helps to have an experienced Attorney move the process along.

8.  Do you need an Attorney to Probate an Estate?

Probate is a complicated process.  Of course, I may be biased, but, I believe it really helps to have an experienced Attorney on your side.  If you have ever dealt with the Court before, you know how long it can take to do a simple thing.  There are literally hundreds of rules and procedures to follow to complete the process.

9.  What is the difference between a Trustee and-and Executor?

A Trustee manages or administers a Trust and an Executor manages the Probate of the Estate.  Some Wills incorporate Trusts within a Will (usually for the benefit of minor children). Thus, you may need both a Trustee and an Executor named in a Will.  Each parties job is complete when the property they manage is fully distributed to the proper parties.

10.   Whose job is it to locate Estate Assets and how do you do it?

It is the Executor’s job to locate all Estate Assets. An experienced attorney knows how to go about locating assets including any assets that may have become unclaimed funds and have been sent to the State of New York.  Attorneys will employ private investigators to track down funds and assets in other States, and assets that may be held in Trust or with partners or financial institutions. An experienced attorney is worth his weight in gold in this area.